Possession, property, power and dominion
‘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. And yet there are very few, that will give themselves the trouble to consider the origin and foundation of this right’
– William Blackstone, Commentaries on the Laws of England (1765–9)
It’s December 1802. We’re in America, in Southampton, just south of Long Island, on a ‘wild and uninhabited, unpossessed and waste land, called the beach’ and we’re watching a young man by the name of Lodowick Post gallop through the scrub with his pals. They’re chasing a fox. The fox in question was later to be described by a judge from the Supreme Court of America as both a ‘saucy intruder’ and, slightly more hysterically, ‘hostem humani generis’, the enemy of all mankind. So, alongside their manly pleasure, galloping through the unseasonably warm winter air, these men are also performing something of a public service. The fox cuts across the beach and goes to ground by a disused well in a squelch of watery land known as Peter’s Pond. A shot rings out. Lodowick and his chums stop up short, surprised – it was none of them. They watch as a young man called Jesse Pierson steps out of the reeds, picks up the limp corpse and carries it home to flay its pelt.
Now, who owns the fox? The guy who was chasing it or the one who shot it? The fox is in Jesse’s hands but Lodowick is a sporting chap with a sporting mindset and thinks that the chase alone declared his ownership of it, if not actual possession. The men have an altercation. Both have guns, although one is on horseback and surrounded by his mates, but neither is backing down. Instead of violence, they choose the right and proper action: they go home and tell their dads.
Jesse goes home to Captain Pierson, a farmer from a line of educated gentlemen landowners, long established in the area, leaders of the town. Lodowick goes home to Captain Post, a veteran of the Revolutionary War, who had gone on to make a fortune in the Dutch West Indies and was a rising star of the nouveau riche (which in America was very nouveau indeed). Like son like father: neither of the daddies was prepared to give ground.
Being true Americans, they went to court. The Posts brought an action of ‘trespass on the case’ against the Piersons, claiming the fox was rightfully theirs before Jesse had even seen it. By killing the fox, Jesse was trespassing Lodowick’s property. The court found in their favour, ruling that the value of the fox, 75 cents, should be paid to Lodowick, plus $5 costs. But the Piersons weren’t giving up. They appealed to the Supreme Court of New York, questioning how the act of pursuit alone could have legitimised Lodowick’s right of ownership to the fox. Could a child chasing pigeons be said to own them? Besides, when did Lodowick’s chase start – the moment he saw the fox, the moment he got on his horse that morning, or the weeks and months and years before that it took to train the dogs? And so began a case that today is taught in almost all Anglo-American property law courses, a case that tested one of the most fundamental questions of civil society: what makes this mine, and not yours; or, in other words, what is property?
Of ownership, the legal dictionary says: ‘it is either so simple as to need no explanation or so elusive as to defy definition’. Which doesn’t really help. It continues: ‘At its most extreme and absolute, it means the power to enjoy and dispose of things absolutely.’ Yet for ownership to exist, possession must first be claimed, and of possession, the US Supreme Court has stated: ‘there is no word more ambiguous in its meaning than possession’.
For three years, three judges trawled through European case law, chasing a paper trail all the way back to the Norman conquest of England, searching for legal precedents concerning how something free can become something owned. The costs of the case escalated from $5 to $1,000 for each side, but the damages remained the same – 75 cents for a carcass. The fox itself is lost in history, rotting on melting ice, because it had become symbolic of a much wider concern: land.
I arrive at the King’s Arms too late for a hot meal, so when I’ve dumped my bags I swallow a pint, stuff packets of peanuts into my pockets and head out into the cold night. It’s a twenty-minute walk to Worcester Lodge, where tomorrow hundreds of people will gather to celebrate the annual meet of the most prestigious fox chase in England, the Duke of Beaufort’s Hunt.
In deep darkness I creep along the A-road. With the village behind me I walk along the Beaufort estate perimeter, past woods and fields, until the land on my left opens up. There is a large semi-circle of grass, the road at its diameter and, in the centre of its circumference, Worcester Lodge, a four-storey stone archway. There is a balcony above the arch, where tomorrow people will sup their sherries, and on either side there are rooms that are curtained and dark. Quietly, not quite sure where my trespass begins, I turn off the road and crunch up the gravel path until the iron gate of the archway blocks my way.
The story of land ownership, or, rather, the fable that land can be owned exclusively, goes all the way back to the moment that humans turned from nomadism to a settled, agricultural existence. Important resources such as natural springs, fishing lakes and fertile pastureland became properties of a sort, something to be defended and contested. Aristotle thought that property served to make men more virtuous, giving them a responsibility to the earth that made them serious citizens. Plato, that proto-communist, thought that property corrupted men, and in The Republic sketched a vision where nothing was owned, and each man received a daily salary for his work. Two hundred years later, Virgil wrote of a halcyon age where:
No fences parted fields, nor marks nor bounds
Distinguished acres of litigious grounds
But all was common.
He must have been suffering from a severe bout of nostalgia, because the very foundation myth of Rome was built upon the defence of a boundary. In what is probably the first reported incident of the disproportionate treatment of trespassers, the historian Livy reports that ‘Remus contemptuously jumped over the newly raised walls and was forthwith killed by the enraged Romulus, who exclaimed, “So shall it be henceforth with every one who leaps over my walls.”’
When the Romans invaded Britain they brought with them the Emperor Justinian’s categories of land ownership which described four different resources that should not, could not, be privatised. The res communes – the air and the sea – were the natural property of all humanity; the res publicae – the rivers, parks and public roads – belonged to all citizens. The res universitas were the public baths or theatres, essentially council amenities, and the res nullius referred to wasteland, cattle pasture, woodland and wild animals, including, 2,000 years later, our famous fox.
When the Roman occupation finally collapsed, like a soggy cardboard box left out in the English rain, the land reverted to clan rule. Kings, thanes and ceorls ruled their demesnes, offering protection and order to the peasants who were tied to the land in complex webs of exchange of military service and offerings of produce. By the eighth century, peasants were practising collective farming, an open-field system where plots of land were allocated on rotation, sowing and harvesting was a communal endeavour and the resources of the land were shared by those that lived on it.
The laws of King Ine, who ruled Wessex from ad 688 to 726, have survived to this day. The legislation reads like basic modern tort law, standardising redress and compensation for various acts of harm and damage inflicted by one on another. They contain rules over fighting in church, blood feuds, regulating the actions of traders, forfeiture of land due to lack of military service. Fences and hedges existed, but for the purpose of containing livestock, not for the restriction of free movement. Nowhere is trespass mentioned.
I have in my hands the cold iron bars of the arch gate, my face pressed through the gaps like a cartoon prisoner in a cowboy jail. In front of me is a wash of darkness, with a tiny speck of light dead centre: a brazier perhaps, or a bonfire. Though I can’t see a thing, I know from the satellite map that what lies before me is a two-mile-long drive that cuts through woodland all the way to Badminton House. Inside live the Beauforts, a family who can trace their bloodline back through the years to the one man who imported the notion of private property as we know it now: William the Conqueror. When William first set foot on English sand, he proclaimed to his men: ‘I have seized England with both my hands.’ From that moment on, a new logic bound England, the logic that saw the vast majority of its inhabitants barred from its lands, the logic that fenced fields, walled parkland and led right up to the locked iron gate in my hands. But tomorrow, this gate will be open.
The next morning, I’m sitting in a corner of the semi-circle, watching the cars fill up the space around me. I’m drawing in my sketchbook, a useful technique that somehow legitimises public loitering. The heavy silence of last night has disappeared and there is a jolliness embellished with the pride of pageantry. People step out of their cars, stretch their legs and walk blithely through the gate.
The fashion is royal dress-down – the queen posing for photographs at Balmoral – silk headscarves and blue gilets, Le Chameau wellies and stout tweed jackets. The balcony is lined with people chit-chatting and, below, car boots double as buffet tables for wicker baskets full of picnic pieces. Though the faces are cheerful and warm, I feel self-conscious, conspicuously out of place, for here is something tribal and I don’t belong.
The debate surrounding fox hunting has long been the line drawn between warring factions of England. It posits animal welfare groups against traditionalists and the idealism of interfering City types against a romanticised countryside realpolitik, nature red in fang and paw. Most dramatically of all, it is the fulcrum of a bitter class war in England: the toffs parade on horseback while the plebs run around in the mud. But today, in the crowds, not everyone talks like Bertie Wooster. Among the caviar-and-smoked-salmon accents, there is a thick Gloucester burr, the oral expression of a cheddar and chutney pub lunch. Here on the ground, away from the spin of politics and media, there is something that is less binary, or at least more nuanced, than the classic cartoon of Class.
I walk through the gate to join the throng. A field of lush green grass is speckled with groups of people. Plush dogs and pedigree children run around, and some men and women are already perched on glossy horses. The avenue runs through the trees, undulating over the valleys, and, right at the very end, miles away, gleaming whenever the clouds part: Badminton House. In the far distance, a troop of horses is cantering towards us, with a pack of dogs at their hooves, an impressive, magnificent and anachronistic sight. When the phalanx arrives, the hundreds of people in the field crowd around a temporary fenced enclosure where inside, the dogs now gambol and leap over each other. The Duke of Beaufort is there, nursing an inch of sherry in a plastic pint glass, and three horsemen stand as still as their horses permit, two young and dashing, the third a port-stained Humpty-Dumpty.
The dogs, or hounds as the tribe calls them, are beautiful creatures, with snowy markings on their cream backs like fallow deer and a clownish and captivating energy. They have a world-famous (and highly profitable) bloodline that runs back almost 400 years, when they were used to hunt down deer, boar and hare, and the occasional fox. In 1762 the 5th Duke of Beaufort returned home empty-handed from a stag hunt, in an area now part of the Westonbirt Arboretum, and the pack took up the scent of a fox. The team had such a fine run of it that the duke focused on foxes from then on. Today the hunt covers an area of 2,000 square kilometres, and has become renowned across the globe. In spite of the Labour government’s ban in 2004 of hunting wild game with dogs, or perhaps because of it, fox hunting is thriving: today there are over 180 different hunt packs in Britain and subscriptions are up nationwide, most noticeably with younger riders.
The dogs are bored. Two of them have inexplicably dug deep holes in the grass, and now most are sitting as one, impatiently facing the horses. They’re ready. There is a brief flurry of activity, the gates to the enclosure are opened, children are lifted onto dads’ shoulders, the horns blow, there are cheers, and the pack thunder off to the woods at the bottom of the field. Since the ban, these hunts have officially given up on live quarry, and instead they chase a trail of fox urine or chemical compounds laid by a hunt member twenty minutes before the chase. I watch them disappear into the woods, pursuing, like Proust’s madeleines, the essence of the past, or more literally, a pungent bag of piss.
Like a shoplifter I loiter around the gate to the main estate, unsure of what happens next. People begin folding up their hampers, closing the boot doors and saying their goodbyes. Some wander past me for a quick stroll in the grounds – they keep mainly to the first slope of the valley, still two miles away from the house. And this seems to be my chance. I slip through the gate into a murky grey ground of trespass law: the duke has given his permission for the grounds to be open today, but to a limit, and now the line is not one of property, but propriety. I start walking.
Once William the Conqueror had defeated Harold on Senlac Hill in Hastings, he advanced on London. He crushed Edgar Atheling in as little as two weeks and balanced the crown upon his head on Christmas Day, 1066. The coronation was the first of his spells to be cast upon the land, a PR stunt – he wasn’t conquering England, but asserting his rightful claim to the throne. Over the next few years, he distributed the land to his French barons, about 180 of them, who went on to build castles in strategic locations to monitor the Anglo-Saxons and suppress their uprisings. The land, however, was only owned by the consent of the king. It could be taken back at any time. England had a new centralised source of power, bound by the notion of sole dominion, underpinned by the threat of eviction.
William kept about a fifth of England for himself. And this long avenue of open grassland that leads to Badminton House, the width of a football pitch and the length of forty, is a record of what he did with his lands. It is a chase, a long section of land cut through the woods to facilitate horseback hunting. As a Norman noble, hunting was what you did with your day: not only was it practice for armed combat, it was also a highly effective source of revenue. In a land without a standardised coin, venison was a valuable trading commodity; as his dogs sniffed out another hind, William was chasing petty cash through the woodlands. But under Anglo-Saxon rule, these tracts of land were recognised as the vital source of subsistence for all peasants of the area and governed by strict localised customs. Commoners, the people who used these commons, had long-established rights not just to graze their cattle and pigs, but to take wood (estovers), dig peat and gravel (turbary) and fish the ponds (piscary). The problem for William was that deer are easily spooked and require large tracts of land to live comfortably – and so to protect them, and for the first time in English history, the commoners and their cattle were barred from the land they used. These areas became known as forests, from the Latin foris, meaning ‘outside of’, because they were areas that operated outside of common law. Within these forests, another set of laws applied, ones that were intended not to promote equality and justice, but simply to fatten the deer for the king.
And so began the cult of exclusion. William’s love of hunting (and of petty cash) was shared by his barons, and a hundred years after the Battle of Hastings a quarter of England was forested, including most of Essex, Sussex, Surrey and Hampshire. Villages were burned, roads re-routed and farmed fields left to grow wild. By the 1200s, there were almost 2,000 deer parks across England, breeding grounds for these flighty cash-sacks, protected and guarded areas outside the common laws of the land. It is here that we start to come across references to trespass in its most primitive form: quare intrusit.
The assizes of novel disseisin were the local courts devoted to cases regarding new dispossession, or unlawful seisin. Seisin was what Jesse Pierson did to the fox and what William the Conqueror did to England (with both his hands). Literally translated as rape, it is the definitive term for the moment of possession. It was William’s grandson, Henry II, who established the first court of novel disseisin, which became hugely popular due to its speed and expediency – rather than dealing with the messy business of proving who actually owned the land, it sought simply to give redress to those whose property had recently been seized by other parties. Cases included anything from burglary to cattle rustling or violent assault. Decisions were made, damages paid, the property was recovered, the King’s Peace restored. But over time the notion of the violation of property expanded, so that simply to cross the boundary was deemed damage enough. Through the increment of various cases, the cult of exclusion hardened into common law: it had precedence.
I am now approaching the end of the ride. Two miles of grass cut through working woodland, the spine of the 52,000-acre estate, has led to its heart, the parkland and the manorial seat, Badminton House. Twenty-five windows wide, the two turrets and grand Vitruvian façade curtain a large multi-faceted estate office, with gardens of symmetrical hedges, roses and tulips, the world-famous dog kennels and its own private church.
All the other celebrants of the hunt have disappeared behind me, the house is silent and I am alone before a long netted wire fence, and a wooden slatted gate, six foot high with a latch at the top, for riders on horseback to open. The gate is locked, and I don’t fancy scaling it directly in front of the house, so I follow the fence round to the east, where a road sweeps up to the front porch. The land before me was seized just as the notion of trespass was emerging in the late thirteenth century; but it took another hundred years or so, and a new dynasty on the throne, to legitimise fully the fence around it.
The Tudor era was the goldrush for private property. Common land was being privatised not only by barons of Norman heritage, but by any number of squires and gentry who saw the vast profits to be made in turning the land over to sheep. The watchword of Tudor enclosure was ‘improvement’, a euphemism for privatisation that councils and building contractors use to this day. It contains the idea that unowned space was a waste of potential profit, and that society at large could be bettered by the private regulation of land.
This new philosophy was ratified by the emergence of a new tradesman, the surveyor, who was able to make use of new technologies to map out the exactitudes of what was owned. A multitude of books, pamphlets and lectures drew out the new terms of land ownership. The concept of property was soon divorced from localised tradition and instead standardised into textbook definitions that applied across the land. The purity of mathematics was used to sanctify the purity of property, as John Dee describes in the preface to his work Elements of Geometry, published in 1570: ‘the perfect Science of Lines, Plaines, and Solides which like a divine Justicier, gave unto every man, his owne’. In the Reformation, maths was God, and those who held the numbers held the land. Land ownership itself became a profession, and supported a raft of other jobs – lawyers, surveyors, estate agents – each generating reams of paperwork to prove their own viability. When Hamlet is skulking around the graveyard in Act V of Shakespeare’s play, he picks up a skull, stares into its hollow sockets and ponders that ‘this fellow might be in ’s time a great buyer of land, with his statutes, his recognisances, his fines, his double vouchers, his recoveries. Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt?’
Aside from Hamlet’s teenage nihilism, Shakespeare, himself a modest landowner, gives us some insight into the mechanics of this new perception of property. The fence lines that were rolled out across England were the manifestation of lines of legal prose, and each justified the other. As these fences went up around England, what lay inside them was partitioned from the web of social ties and responsibilities to the communities that surrounded them and became abstracted into commodity alone – something to be bought and sold on the market.
There was push-back, both in government and Church. In 1601, Edward Glascock rebuked Robert Johnson, MP for Monmouth and a professional surveyor, saying, ‘I think the gentleman that last spake hath better Skill in Measuring of Land, than Men’s Consciences.’ The necessary displacement of people from within the fences, and their subsequent estrangement from the wealth of the land, was decried as an immoral act, kicking away the crutches that the peasants leaned on for their subsistence. One Puritan preacher and polemicist, Robert Crowley, levelled this accusation against the gentry in 1548: ‘God hath not sette you to surveye hys lands, but to playe the stuardes in his householde of this world, and to se that your pore below tenants lacke not theye necessaries.’
There is a cattle grid where the fence parts for the driveway. And a sign that says DEER IN RUT. It is late autumn, mating season, and this sign points to the very prominent danger of being skewered by a horny stag, amorously or otherwise. I can’t see the herd, so I chance it, and cross the fence line into the duke’s private park. Among the various follies of the estate is an ancient hermitage made from the roots of trees. Built during a brief fad for root houses, the landscape designer and astronomer Thomas Wright designed it to accommodate a part-time fancy-dress hermit. On the back end of the hut is a bench under an alcove of a forked bough, with an inscription that reads: ‘Here loungers loiter – here the weary rest’, and a few nights before, circling it on the map, this had seemed as good a place as any to sit and draw.
With the house to my right, I cut a diagonal across the parkland, a landscaped, picture-book Arcadia of undulating lawns and statuesque oaks. A dried-up, grassed-up dyke runs to my left, and I cross it on a small stone bridge, my gaze sweeping the land for the root house. It emerges through the trunks of the trees, a thatched roof squat beneath a circle of grand oaks. From a distance, it has the look of a gingerbread fairy-tale cottage, home to a craggedy old witch. It is, in fact, dedicated to the deity of Badminton House, a little-known sorceress by the name of Urganda, who was a Portuguese version of Circe, the witch that Odysseus encountered halfway through his journey home from Troy. I circle the hut, and find an inscription above its front door, which has been graffitied by generations of dukelets: ‘Here Urganda, in woods dark and perplexed, inchantments mutters with her magic voice.’ The place is enchanting, a make-believe theatre prop that has weathered into something real, and I want to draw it, while sitting under one of its oaks.
I circle it again, to find the best angle, and not 200 yards away I notice the herd of deer which have been watching me all along. Each and every one of them is paused, poised, posed, one foot in the air, a troupe of dancers waiting for the music to begin. They are a knee jerk away from bolting, streaming across the parkland, sending a visual alarm to anyone in the great house that an intruder is at large. But I sense the greater danger when I see three stags at the head of the herd. Two are already on their feet, but the third, still sitting on his haunches, is the Marlon Brando of the bunch, heavy and hulking, sexy in the calm assurance of his own dominance. It is instantly apparent that in this rutting season, as with many before, he’s been getting most of the action.
In the year he died, English philosopher Thomas Hobbes wrote: ‘my mother gave birth to twins: myself and fear’. The moment she heard that the Spanish were on their way, coming over to colonise England, her waters broke and out came Thomas. He went on to write Leviathan, a treatise on how best to structure a society and nation state, which was published the year that the English civil war ended. He later claimed that this war had been brought about by ‘the new belief in unconditional property right’ and much of Leviathan is a study of his concept of property, and where it gained its legitimacy.
For Hobbes, property was a man-made construct, designed to lift us out of our ‘state of nature’, which was one of conflict and precarity. This is the foundational text of what is now called libertarianism, and 300 years later was neatly summarised by Robert Frost in his sardonic poem ‘Mending Wall’: ‘Good fences make good neighbors.’ For Hobbes, property and its strict delineation was the basis of all civil society, a social contract that ensured human interaction be peaceful and civil, superior to that of the wild animals; without it our lives would be ‘solitary, poor, nasty, brutish, and short’. And out here, caught in the beam of Marlon’s steady gaze, these words seem more than theoretical: I decide to channel Hobbes, and leave this state of nature for the protection of the fence. I don’t look back until I’m almost there, and while the two young stags have disappeared, Marlon is on his feet, adding a final exclamation mark to his silent threat. Turn, piddly human, and do not make me gore you against an eighteenth-century Grade II listed building.
I pass through a ten-foot gate into another sweeping valley dotted with isolated oaks. I walk along a path lined with trees that form another one of the chases emanating from Badminton House like rays of the sun. I’m calm again, safe behind the fence, and I stop to draw an enormous tree stump that looks like an inverted moon crater. Inside it is an oasis of wet rot and green life, ferns and flowers, and as it appears on the page of my sketchbook it turns into a table-topped dormant volcano, a private Eden walled from the field by its bulky outer layer of crumbling cambium and hard bark.
From the Middle Ages onwards, theorists of property worked from the premise of the Garden of Eden, the original walled park of western philosophy. In Genesis 1.28, God instructs Adam and Eve to ‘Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.’
The anthropocentric authors of the Bible state that everything on earth was created by God for the sole use of Adam; in other words, for all of humanity. In Tudor England, this was the unquestioned consensus, a given. However, the problem that followed was how any one member of this group could justify enclosing a common wealth for their own private gain. This was a problem taken up by a range of Tudor philosophers, jurists and theologians and continues to the modern day, in a snowstorm of thuslys, moreovers, therefores and furthermores, otherwise known as logic. Carol M. Rose, Professor Emeritus of Law at Yale University, has encapsulated these arguments in a neat phrase she calls ‘ownership anxiety’, the compulsion to validate the central crux of the argument, the origin myth at the base of every area of private land on earth: the moment of ‘first possession’.
Hugo Grotius was a Dutch statesman and jurist writing in the early seventeenth century. He worked from the principle of Eden – that all land was given to all people. But he gave himself the authority to extend God’s claim that those who were able to ‘replenish the earth and subdue it’ had earned their right to exclude others from it. He saw private property as an institution invented by man but which, once created, had become a law of nature, that is, an issue of inherent morality: ‘property (dominium) … was introduced by Man’s Will, and being once admitted, this law of Nature informs us, that it is a wicked Thing to take away from any Man, against his Will, what is properly his own.’
Samuel von Pufendorf elaborated on this theory in 1673, explaining how the first person to occupy an area of land had a moral right to it simply because they did not have to displace anyone else to claim it as their own. In modern terms: if you arrive at a waiting room at a railway station and take an empty seat, it is fair for you to defend that seat if someone tries to throw you off. You have occupied that space peacefully and the law should defend your right to maintain occupancy. In other words: finders, keepers.
For John Locke, writing in 1689, ‘finders, keepers’ did not justify the right to exclusive possession. But you could earn it by working. For Locke, private property in land was an extension of the fundamental ownership of one’s body, and the labour it exerted. Once you have combined the earth’s natural resources with your own sweat and skill, ploughed the fields, sowed the seeds, then the land and its wealth should be yours and no one else’s:
Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this no body has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.
For Locke, the notion of property was a natural law, one that applied to men and beasts alike; it is a natural inclination to guard the resources that make life possible. Locke disagreed with the Hobbesian idea that the state of nature was a brutish dog-eat-dog existence, preferring instead the idea of an inherent morality that obliges one not ‘to harm another in his life, health, liberty or possessions’. However, he conceded that this moral or natural law was fragile, and so required a consensus agreement to safeguard it, an artificial creation called the rule of law. The role of law, therefore, was to protect a citizen’s right to protect their own life, and thusly, moreover, therefore and furthermore, the role of law was to protect private property: ‘The great and chief end, therefore, of men’s uniting into commonwealths and putting themselves under government is the preservation of their property.’
This was a key moment in property philosophy, not unlike the creation of the forests: one small step of logic for man, one giant leap for mankind. Suddenly, the law of the land lurched from protecting the rights of all citizens to protecting the rights of those with property – logic had led Locke from the natural law of self-preservation to the artificial law of property protection, and by extension, 400 years later, he had reframed this walk of mine on a field in Gloucestershire, into a direct assault on the Duke of Beaufort.
I have walked up the slope of the parkland, through a beguiling sculpture park of fallen oaks – great canopies that have, over the years, come crashing down, had their leaves and brush cleared and been left to create striking silhouettes against the sky. I come to the end of the field to find myself enclosed by another fence. A tall slatted gate is chained at the bottom, and to leave this parkland I must climb ten feet into the air. I’m taking the bag off my shoulders when I hear a voice, the classic opener: ‘Are you lost?’
I look up, and on the other side of the fence are six horses with their riders. They are on their way back from the hunt but they are dressed in blue coats, not green, a sign that they are subscribers to the hunt and have no property here. They neither represent the duke nor have anything more than his permission to be on the land. But their authority comes from their horses. An infamous YouTube video flashes through my mind, filmed in 2017 during the Middleton Hunt. Members of the West York Sabs are being confronted by George Winn-Darley, owner of Staunton Moor and Representative of the Moorland Association, on a track through a dour piece of land in North Yorkshire. Winn-Darley is mounted on a beautiful, incredibly well-behaved horse, and is driving it repeatedly into the gaggle of anoraked hunt saboteurs, kicking one in the chest with his black leather boot. When the Sabs accuse him of assault, he responds that he is using ‘reasonable force’, availing himself of a semantic grey ground of property law that favours those with pockets deep enough to argue their case in court. In just over a minute of footage, he manages to shout ‘Go back to the highway’ thirty-two times, all the while emphasising his words with little jerks of the foot, still attached to the stirrups. His performance is a masterclass of surrealist repetition and a reminder of how, throughout history, horses have been used to assert authority.
Ironically, the fence protects me: trespassing the duke’s land, with his representatives on the other side of the fence, I’m safe from the heft of their horses. I take the option they offer me, because it’s easier for everyone, and say, ‘Yes, could you help?’ They spend a while redirecting me, and I watch them gallop off, punching deep crescent dents into the mud as they go. I climb the gate and drop down to the other side.
Directly beneath where the speaker’s horse was standing is something I have never seen before. Among the brown oak leaves, almost camouflaged against the grass, is the head of a deer – black muzzle, grey fur, eyes shut. Its jawbones are visible beneath the torn fur and a knotted rope of vertebrae runs from the base of the skull, bright pink like cherry yoghurt, turns a right angle at the ribs and extends the full length of its spine to its hip bone and two thigh bones. It is a ravaged carcass, almost no meat left on the bone, and other than the pack of dogs currently ranging the Beaufort hunt I can’t think what could have done it. Jus abutendi, I think. ‘The right to destroy is an inherent component of the right to property. It has traditionally been called the jus abutendi: the right to consume, transform, and abuse … An owner is entitled to consume or transform the thing that is the object of property rights, and the same theme is evident in international law.’
And this vision somehow clarifies the mysterious rite of fox hunting. The red fox is a red herring that leads you on a chase away from the real meaning of the hunt. Instead, it is the liveries the hunters wear that speak more directly to the source of this ritual: the green jackets and leather boots are relics from the uniforms worn by the duke’s yeomen, the private army that each lord kept to underscore his rule of the land. Yeomen were used to mete out justice, the arm of the rule of law that in feudal times was the whim of the landowner. Just as the Catholic Church used to consecrate the boundaries of land, in a village ritual where youngsters would walk the edges of fields, blessing what lay within with fertility for next year’s crop, so fox hunting is a ritual, an elaborate display of total dominion within the land. The hunt is a reassertion of the right to go anywhere the fox takes them, over hedges, fences, farmed fields and public highways. The power of the horses’ hooves, that deranged baying of the hounds, the bloodlust that has survived through the ban, is a fetishisation of that moment of possession, the moment that dogs encircle the fox, the moment the land is seized.
Grotius, Pufendorf, Locke and their like were unable, or unwilling, to confront the true mechanism of land seizure, that the notion of peaceful first occupancy is a lie, that the land was already held by the people that used it, relied on it and lived upon it. But when the cult of exclusion met the philosophy of the commons, exclusion won because it rode a horse.
England was not seized when Harold fell from his horse. Nor was it seized when the crown was placed on William’s head. The following year, William embarked on a military campaign called the Harrying of the North, an assault on the commoners just shy of genocide. It was a sustained campaign that began in the north of England and set a precedent that was to be followed right up to the nineteenth century. It was a campaign that relied on brute force, the power of the sword and the horse cutting the ties between the people and the land. In the words of the Conqueror himself:
In mad fury I descended on the English of the north like a raging lion, and ordered that their homes and crops with all their equipment and furnishings should be burnt at once and their great flocks and herds of sheep and cattle slaughtered everywhere. So I chastised a great multitude of men and women with the lash of starvation and, alas! was the cruel murderer of many thousands, both young and old, of this fair people.
I’m sitting in Room 35 of the National Gallery. It’s a weekday, but it’s still busy with tourists, using the room as a corridor to the selfie-scrum, two rooms on, before a still life of some sunflowers. In front of me there is a painting by Thomas Gainsborough, small and chocolate-box twee, which is largely ignored.
A man stands before a tree, leaning on a bench, a shotgun tucked under his right arm, a hunting dog at his heel. He wears a tricorn hat and a silver dress coat, and his eyes link with the viewer. A woman sits on the bench, her eyes caught by something behind us. She wears a shimmery sky-blue dress, her feet poking out from the golden hem of her petticoat. To the right, the landscape rolls out behind the couple, a full two-thirds of the picture, telling us everything they want us to know about them. They’re doing well for themselves: the land they own has just been harvested, they’ve sheep in the fields (money in the bank) and they’re in the flush of young adulthood. They are Mr and Mrs Andrews, newlyweds.
The art critic John Berger had a pop at this painting in his television series Ways of Seeing. Through Berger’s prism we see a pair of haughty privileged kids, flaunting their wealth, challenging us to the one aspect of the land behind them that made it completely theirs: the right to exclude us.
They have become not a couple in nature, as Rousseau imagined nature, theirs is private land … If a man stole a potato at that time, he risked a public whipping. The sentence for poaching was deportation. Without a doubt, among the principal pleasures this painting gave to Mr and Mrs Andrews was the pleasure of seeing themselves as owners of their own land.
As Berger delivers his monologue, the camera pans out to a new version of the portrait, vandalised by Berger, or one of his art department. The tree trunk that roots the composition has a sign painted on it, above Mrs Andrews’ head, which reads: TRESPASSERS KEEP OUT.
The painting is itself a form of private property, Gainsborough’s labour and skill hardened into a desirable object, a commodity that can be bought or sold and held behind locked doors. It would have hung above the marital bed of the Andrews, for their eyes only, a poetic version of the surveyors’ maps in a Tudor landlord’s office, a mirror of their magnificence. The public were granted access to the painting in the 1960s, when it was sold to the National Gallery, but the land it depicts remains out of bounds. However, while the two-dimensional realm of the painting is literally impenetrable, the land it depicts is not.
So, in the hot hum of high summer, me and a friend drive out to Sudbury, on the border between Essex and Suffolk. I have read online that the current owner of the estate receives so many pilgrims that he let one spend an entire day painting the wrong tree. My friend sympathises, as she lives on the farm once owned by the nature writer Roger Deakin, and has had her fair share of pilgrims; depending on her mood, she will either receive them courteously or hide in a hedge.
We walk up the gravel drive and ring the bell of the large house. The owner tells us where to find the tree, we thank him and drive round to the back fields. As we approach a tree, a hare turns out of the long grass and simultaneously a barn owl drops, wide-winged from the leaves, and soars low across the field. A good start.
From the size of the trunk in the painting, the tree was already a couple of hundred years old when Gainsborough turned up with his brushes. That makes the tree before us now almost 500 years old, and it looks its age. Its crown is thinning and several boughs have fallen, leaving great gaps in its canopy and old worn holes in the trunk, perfect homes for barn owls. There is a large crack down the trunk, and the wood inside has turned to red dust. My friend and I stretch out on the dry grass at its base, like cats on an Aga. I pull out my sketchbook and draw the tree as flies thud onto the cartridge paper. Time passes and eventually my friend has to leave, so we hug and, as her car pulls out of the drive, she takes our permission to be there with her. For John Berger, in memoriam, I’m staying; I want to cross the forbidden line of the painting and enter its real space.
You can tell Gainsborough had a sense of humour because he called his dog ‘Fox’. And when you know a little more about his private life, that his wife was the bastard child of Henry Somerset, the 3rd Duke of Beaufort, this twinkle-eyed pun garners an altogether more subversive tone – you can guess which side of the fence he was on.
When Justice Livingstone referred to the fox in the Pierson and Post case as ‘the enemy of all mankind’, we can presume he was referring to foxes in general. The fox has always been the archetypal trespasser, the wanton destroyer of fowl, the white-gloved invader of the hen house. By the eighteenth century, Bold Reynard, the character of the fox sourced from twelfth-century French and Germanic folklore, was a firmly established peasant-hero character, either gypsy or vagabond, outwitting the lords and gentry with his wily ways. Perhaps this adds an extra hue to the tradition of fox hunting, giving it a symbolic meaning on top of the ritualistic display of land ownership – by flushing the fox from the forest, these huntsmen are re-enacting the cult of exclusion.
I am sitting by the lake, drawing the scene. The sun is hammering hard on the earth, filtering colours with its glare: all greens are yellows, all shadows are pitch black and the sky is so blue it throbs like a bruise. There is an occasional plip from the lake, from the lips of big fish that rise like brown mud from the shallows. Dragonflies are knitting soft nets of noise above my head and the wood pigeons repeat their earnest cry: my toes hurt Betty, my TOES hurt Betty. For forty minutes or so I sit in a perfect reverie, a kind of loose concentration that turns streams of distinct thoughts into pools of passive rumination. Breath deepens, slows, holds and lengthens, the body calms into that moment just before sleep. Drawing is meditating with your eyes open – it turns the self into something permeable: no longer are you the end point of sight, but, with the paper as the final destination, you become simply a catalyst, your mind only a midpoint in a transformation.
The Heythrop Hunt is an offshoot of the Beaufort and uses the same pack of dogs. In 2011, it was the first hunt to fall foul of the new fox-hunting legislation brought in by the Labour government, when its members pleaded guilty to four counts of ‘unlawfully hunting a wild fox with dogs’. The case gained considerable publicity, though largely in criticism of the RSPCA, who brought the case and had spent £327,000 on the proceedings. Again, class warfare clouded the debate – David Cameron, posh boy of posh boys, used to ride with the Heythrop, and the hunt faction declared the case a war on tradition, an act of inverted snobbery. Even District Judge Tim Pattinson criticised the RSPCA, saying, ‘Members of the public may feel that RSPCA funds can be more usefully employed’, adding (somewhat fatuously): ‘It is not for me to express an opinion.’
The Heythrop Hunt was fined £4,000 with £15,000 costs, and two of their members had to pay £1,800 and £1,000 respectively. The footage that convicted these men was filmed by the Cotswolds’ animal rights group Protect Our Wild Animals, who operate in a similar manner to the Sabs that Winn-Darley was filmed kicking, following the hunt and monitoring it for illegal activity. Outside the court one of the convicted huntsmen said that he had only pleaded guilty to avoid the escalating costs of the RSPCA’s case. His following comment was aimed at the Sabs who had filmed his crime, but is a useful text in the psychology of property: ‘These people are vigilantes following me around and filming me … I’m not allowed to follow them around Tesco and see if they steal a tin of beans.’
No, but Tesco do employ security guards for precisely that purpose. What stands out in this quote is that for the huntsman and his sporting chums the body of a fox, alive or dead, is analogous to a tin of beans. It is an object excised from its context, a thing, reified by the principle of property.
By the time Gainsborough had painted his portrait of Mr and Mrs Andrews, land had followed the same logic that the huntsman projected onto his fox. It had become fully commodified, pulled from the roots of human relations, bagged and tagged like a tree in a garden centre. The fence, which had for so long existed to keep things in, had by now had its dynamic reversed, and was the primary technology of keeping things out. If the Andrews were anything like their landowning counterparts, the hedges and greenery of Gainsborough’s portrait would have concealed an artillery of anti-trespass technology: man-traps in the hedges, spring-loaded iron-toothed thigh-crunchers that snared playing children and creeping poachers alike. There were tripwires that set off shotguns hidden in the brush, spraying the area with lead shot. And, long before any official police force had been established, teams of private security guards, gamekeepers, prowled the land, armed with shotguns and flails, or swinges, long oak staffs with heavy cudgels hinged by leather straps, weapons designed primarily for the defence of property rights. And the law was fully onside. E. P. Thompson explained that ‘Since property was a thing, it became possible to define offences as crimes against things, rather than as injuries to men. This enabled the law to assume with its robes, the postures of impartiality: it was neutral as between every degree of man, and defended only the inviolability of the ownership of things.’
Words had also changed their meaning. The original meaning of the word ‘acre’ was ‘open country, untenanted land’, but by Gainsborough’s time it had come to refer to an exact measurement of land, standardised across the country to facilitate valuations and sales. The most significant change was in the definition of the word property itself. In feudal times, property meant rights in a piece of land, referring to the customs of permissible actions and their reciprocal duties. Medieval lawyers never spoke of owning land, but, rather, of holding the land – an aspect echoed in the terms still used today of ‘freehold’ and ‘leasehold’. The land was yours to use, according to local custom and to the ecology of what each particular site had to offer – you held it, but you didn’t have it. When the commons were particularised (to use a popular euphemism of the time), that is, divided up and sold, these rights were part of the deal and became the sole right of the owner of the land – rights in land became rights to land. Property had come to be understood less as a network of relations between community and land, and now referred simply to the land itself. The space without the community. This is the origin of the phrase real property, having nothing to do with the nature of truth, but instead deriving from res/realis, the Latin word for thing.
But what about the wild animals? These wild-eyed ramblers have no regard for the lines of land ownership. Smoots, meuses and smeuses are ancient terms for the same phenomenon seen today across England – those little pathways that run through hedges and under fences made by foxes, badgers and hares. These lawless critters move between estates as if trespass laws don’t exist, and in the eighteenth century this raised concerns about who held the rights to hunt them. Was hunting a lease granted by the sovereign, or was it a right that came with land ownership? As communities excluded from privatised land sought to re-establish their rights to hunt the wild animals that fed them, poaching became the crime that defined the eighteenth century, and caused another bout of Ownership Anxiety.
This time, the defence fell to William Blackstone, jurist, judge and Tory politician, whose quote opens this chapter. Like Hobbes, he argued that the rights of property came from the sovereign, and that, in the case of wild animals, a person’s right to hunt them came from a grant, issued by Parliament or local government. His magnum opus, Commentaries on the Laws of England, was divided into four sections and the second, ‘The Rights of Things’, dealt almost exclusively with real estate.
The only question remaining is, how this property became actually invested: or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands, that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it.
Once again, like Pufendorf and Locke before him, Blackstone cannot find a moral argument for the moment of first possession – like his forebears he invents the notion of a community consensus: so it is agreed upon all hands. Like his forebears, he also assumes that the land which was first occupied was not already taken: it ‘belonged generally to everybody, but particularly to nobody’. History tells us otherwise.
‘All the world was America,’ wrote John Locke in his Two Treatises of Government. He meant that every area on earth was, at some point, unowned and therefore, in Locke’s perspective, ownership could be justified by that land having been improved to turn a profit. But, of course, the land of America was owned: by hundreds of Native American tribes. They had rights in the land, and had fought each other viciously to maintain them. Similarly, the wasteland of Jesse Pierson’s fox was not, as Locke would have it, unoccupied property. It was originally occupied by the Shinnecock Indian Nation who paid protection tributes to the most powerful tribe of the area, the Pequot. When the Pequot were slaughtered and enslaved by British colonialists in the war of 1637, their vested interests were washed away in blood. The land became hotly contested by the Dutch government and the English Crown and by the time Lodowick Post had climbed on his horse it was not a wasteland but common land, with a multitude of property claims. These days, this wasteland around Peter’s Pond has been almost exclusively parcelled up and sold, common rights entirely subsumed by private rights, and the prices of property on the Southampton Bay now average at around $1.3 million.
From Locke to Blackstone, these tracts of logic are not as objective as their authors made out. Grotius was writing his defence of property in direct support of the Dutch claim to fish in British sea territory. Hobbes was writing under the patronage of the Duke of Devonshire, who later came to own the land targeted by the Kinder Trespass. Pufendorf, the guiding light to Locke and Blackstone, dedicated his first book to Charles Louis, the nephew of Charles I of England and palatine of much of modern-day Germany. Locke was under the patronage of the Earl of Shaftesbury, and writing essentially in defence of colonialism. And Blackstone himself was writing under the financial patronage of George III and was a Member of Parliament for a rotten borough, which put him in Parliament by virtue of his landholdings alone. It’s pretty clear what side of the fence he was on. Logic, in its pure definition, means the use of reason, validated by empirical data. However, modern-day computer technicians define it slightly differently, and more appropriately to these dusty polemics: a system, or set of principles, aligned in such a way that they can perform a specific task. What these highly influential texts sought to do was reimagine the world according to their own interests.
Which brings us back to Gainsborough, and his portrait of Mr and Mrs Andrews. You have to go to the land itself to see the artifice of the image. Standing by the tree, taking in the view with my friend, nothing in front of us correlated with the version Gainsborough had painted. This isn’t just the effect of time, or that great catch-all excuse of ‘artistic licence’. The topography has changed. Villages have moved. The church that Gainsborough painted through the trees is All Souls Church, which is actually at a right angle from the painter’s view. In real life, the land falls sharply away and rises to the crest of another hill, which blocks out anything but a few distant trees. In the painting you can see at least four fields, plus the distant blues of hills in the background. It is as if Gainsborough has tilted the land, like a waiter would present a cheeseboard, for your inspection. And this is precisely the aim of the painting. For all its realism of rendition, this painting of the newlyweds is in fact a symbolic representation of a contract of land ownership, marriage as business merger.
The land once belonged to a convent, where local commoners would have had rights in the wood and grazing. When Henry VIII sacked the convent and sold the land on to its highest bidder, he particularised the common into private property and divested the commoners of their livelihood. The land was eventually sold to two men, Mr Andrews and Mr Carter, the fathers of the couple in the painting. When Mr Andrews died in 1735, his share of the land was left to his wife to ‘hold’ until their ten-year-old son came of age. She had the use but not the ownership of the property, on the strict proviso of her dead husband that she would lose everything if she remarried. When the young couple were married in 1748, the two halves of the land were joined in one dynasty, but it was a year later, when Robert’s mother died, that he gained full title of the land. The picture was not in fact commissioned to commemorate the marriage, but the succession of ownership rights.
With this in mind, the rest of the picture falls into place. The gun and the dog, like the sheep and wheat, are symbols of the rights conferred by land ownership, hunting and farming. These were the same rights that were removed from the community when the land was enclosed (the community who are themselves absent from the picture) and given to the only two people who remain: its owners. This is a painting not of people and their property, but a portrait of property itself, as it was now conceived, an icon of the cult of exclusion.
My sketch is done. I have been snoozing in the shade of the oak, moving only to flick off the flies as they tickle my skin. The day feels as endless as the sky, as if time has loosened its grip; it feels like the school holidays. I gather my crayons, brushes and ink, fold the sketchbook and leave the lake through a cool green copse. I head for Sudbury, where the Andrews were married, where Gainsborough grew up and where I will eventually take the train home.
I walk out into a machine-sculpted landscape, a gravel track running along its side into arable fields beyond. Not a fence in sight. Several hundred yards in front of me is a man-made lake glistening like a golden ticket. I am walking around its perimeter, past banks messy with goose shit and large grey feathers, eyes tranced by the dance of the sun on the water. It’s very tempting; there’s even a pier.
I take off my clothes. Standing naked beneath the sky, I am saturated by summer, stoned on the sun, thinking this must be what photosynthesis feels like, when a military plane flies low and directly above me, buzzing like a hundred-tonne metal May bug. I watch it disappear over the horizon. Then I slip into the greasy, cold water, and swim.
Floating on the water, facing the cloudless sky, I remember a line from an article in the Daily Telegraph: ‘Gainsborough’s painting of Mr and Mrs Andrews encapsulates many people’s ideal of the English countryside.’ In fact, it encapsulates the convention of the countryside that is ideal for very few: the orthodoxy of exclusive ownership. The vision we have of England is, like Gainsborough’s painting, a highly manipulated illusion of England created by its owners, a self-regarding fantasy, which like the root house on the Duke of Beaufort’s land, has weathered into something real. For some scholars, the entire architecture of property law is just as contrived as Gainsborough’s painting. Clifford Geertz, American anthropologist and Professor Emeritus of Princeton University, wrote: ‘Law is not so much a set of norms, rules, principles, values … but part of a distinctive manner of imagining the real. Nowhere is this more true than in the realm of real property laws. Property law has in effect, helped us to re-imagine and reinvent what we understand to be the real world.’
I leave the lake, swipe the water off my body with my hands and put on my clothes. I follow the track and find my way to a corner of a fallow field, by a patch of derelict land, fenced and hedged off by barbed wire and large sprawling thickets of bramble – rabbits dart between hiding places, the ground is dry and netted, the earth dusty, the flies making thick noise. I find a gap in a row of hawthorns, and, careful not to spike myself on their feathered spears, I inch through the tree on to the road. Here now, under one strict proviso, is a place where I can be: just so long as I keep moving.