Citation: E. P. Thompson, Customs In Common (New York: The New Press, 1991), pp. 159-175 V



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Citation: E.P. Thompson, Customs In Common (New York: The New Press, 1991), pp. 159-175

V
It was always a problem to explain the commons within capitalist categories. There was something uncomfortable about them. Their very existence prompted questions about the origin of property and about historical title to land.
In the sixteenth and seventeenth centuries landowners had asserted their titles in land against the prerogative of the king, [160] and copyholders had asserted their titles and customs against their lords. They therefore had discarded theories of the origin to title in divine right. Yet if they fell back upon Hobbesian violence or on the right of conquest, how could they reply to the telling counter-argument of the Norman Yoke? When Locke sat down to offer an answer, all this was stewing around in his mind. In his First Treatise he dismissed notions of title by succession from Father Adam or from the donation of God. In the Second Treatise his chapter on property commences with an extended metaphor of common right usage. God granted the world to “mankind in common”, and the fruits and beasts “are produced by the spontaneous hand of nature”. But the common was seen as a negative, not a positive community: it belonged to nobody and was open to any taker.1 Locke took as a paradigm of the origin of property the mixing of labour (which was man’s only original “property”, in himself and in his own hands) with the common:
Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with . . . and thereby makes it his property.
“It hath by this labour something annexed to it that excludes the common right of other men”:
Thus the grass my horse has bit, the turfs my servant has cut, and the ore I have dug in any place where I have a right to them in common with others, become my property . . .
It is not clear that Locke has overcome all difficulties why are the turfs to be his, and not his servant’s or, indeed, his horse’s? Legal decisions in the eighteenth century introduced arguments from “labour” in terms of the general reasons of “improvement”. More often they fell back in the question of custom or lex loci upon the legal fiction that customary usages must have been founded upon some original grant, from persons unknown, lost in the mists of antiquity. The law pretended that, somewhere in the year dot, the commons were granted by benevolent Saxon or Norman landowners, so that uses were less of right than by [161] grace. The fiction was purely ideological: it guarded against the danger that use-rights might be seen as inherent in the users, in which case the successors of Levellers or Diggers might arise and plead their original title.
Locke’s property theory was written in terms which two scholars have sternly described as an English “vernacular”, as against the stricter European tradition of natural jurisprudence. He “did not follow Grotius’s and Pufendorfs restriction of the use of the term ‘property’ to its modern meaning of exclusive and absolute right of dominion”.2 In the flexible traditions of the English common law the meanings of property remained various – an Absolute right, a coincident use-right, a claim to preference, a man’s property in his own life or privileges. Undoubtedly C. B. Macpherson was right to show the increasingly absolute definition of property in the seventeenth century, and the triumph of the claim to the “virtually unlimited and saleable rights to things” in the eighteenth.3 This process was not, perhaps, as univocal as Professor Macpherson proposed, and was, indeed, twosided. For the landowners, landed property was “increasingly becoming subsumed to contract, that is. . . taking on the qualities and functions of capital”, through the liquidity of mortgages and the complex forms of marriage settlements, trusts, entail etc. “Yet at the same time, in the name of absolute individual property, the common and use rights of the ‘lower orders’ were eroded.” 4
Sir William Blackstone had too precise a mind to linger long in speculations, although he endorsed, in passing, the Lockeian view that property in land allows an origin in which in prehistoric times the land “belonged generally to everybody, but particularly to nobody”. But his concern was to define the rights to property as he now found them to be justified at law. And he asserted the right of property (and, [162] in the case of land, the control of physical space) to be exclusive and unqualified:
. . . 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
This bleak and absolutist definition he then (of course) did go on to qualify. His account of customary rights and copyhold is scrupulous, and on some matters (such as gleaning) he leaned to a liberal view. Yet these customs also were considered less as usages than as properties annexed to things. Through the ill-management of history these things were muddled up amongst each other on the land, and it was the business of law to sort each exclusive property out.
Political economy aided and abetted the law. For Adam Smith “property was either ‘perfect’ and absolute or it was meaningless”,6 and it was the function of government to protect property from the indignation of the poor. As he wrote in The Wealth of Nations (1776),
It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labour of many years, or perhaps of many successive generations, can sleep a single night in security.
Somehow the language summons to mind the substantial property, the settled estate, the freehold, while the secure sleep of commoners falls out of view. (After his change-of heart, Arthur Young reported that poor commoners in a Cambridgeshire village regarded the approach of inclosure “with a sort of terror”.)7 It was Adam Smith’s achievement to shift “the terms of analysis from a language of rights to a language of markets”, in a “constitutive move in the making of classical political economy”.8
By the 1780s both law and political economy regarded coexistent properties in the same land with extreme impatience. [163] We recall Lord Loughborough’s judgement that “the nature of property . . . imports exclusive enjoyment” (above p. 139). And this was seconded by the immoderate ideological zeal of the propagandists of enclosure. Monotonously, in pamphlet, in the Annals of Agriculture and in agricultural surveys, the same impatient tone comes through. Opponents of Lincolnshire fenland enclosure wish to “live at large, and prey, like pikes, upon one another”, or these commoners are “Buccaneers” who “sally out, and drive, or drown or steal, just as suits them”.9 “The appropriation of the forests”, Vancouver remarked in the General View of the Agriculture of Hampshire (1810),
Would . . . be the means of producing a number of additional useful hands for agricultural employment, by gradually cutting up and annihilating that nest and conservatory of sloth, idleness and misery, which is uniformly to be witnessed in the vicinity of all commons. waste lands and forests . . .
And the surveyor expressed his earnest wish that “old as he now is, he yet may live to see the day when every species of intercommonable and forest right may be extinguished”. The vocabulary – “prey”, “buccaneers”, “cutting up and annihilating” – reveals a mind-set impervious to alternative definitions; and, as the high tide of enclosure coincided with the political polarisation of the 1790s, so arguments of property and improvement are joined to arguments of class discipline. Parliament and law imposed capitalist definitions to exclusive property in land.
If parliamentarians, landowners, judges and many enclosure commissioners did gross natural injustices in enclosures I do not mean that they were clearly aware of what they were doing. They observed the rules which they themselves had made. They were so profoundly imbued with preconceptions which translated the usages of the poor into the property-rights of the landowners that they really found it difficult to view the matter in any other way. (Although – it is important to note – there were always contrary voices, even among their own ranks.) What may give to this matter a [164] greater significance is that this law and this mind-set were not confined in place or in time. The concept of exclusive property in land, as a norm to which other practices must be adjusted, was now extending across the whole globe, like a coinage reducing all things to a common measure.
The concept was carried across the Atlantic, to the Indian sub-continent, and into the South Pacific, by British colonists, administrators, and lawyers, who, while not unaware of the force of local customs and land systems, struggled to construe these within their own measure of property. It is an interesting inversion of the expected sequence of reciprocity between “social being” and “social consciousness” which, in the Marxist tradition, used to be rehearsed in terms of “basis and superstructure”. To be sure, capitalist notations of property rights arose out of the long material processes of agrarian change, as land use became loosed from subsistence imperatives and the land was laid open to the market. But now these concepts and this law (or lex loci of that part called England of a European island) were transported and imposed upon distant economies in various phases of evolution. Now it was law (or “superstructure”) which became the instrument of reorganising (or disorganising) alien agrarian modes of production and, on occasion, for revolutionising the material base.
A global ecological history might be written, one central episode of which turned upon the mis-match between English and alien notions of property in land and the imperialist essays in translation. Even within the main island of Britain, successive emigrations and clearances from the Scottish Highlands were testimony to the decisions of a law which afforded no shelter to a population evicted from lands which they had supposed to be communally owned, from time out of mind, by their clans. But the law could take no cognisance of such a communal personality. Nor could its categories match the communal usages of hunter-gatherer peoples. Locke had ruminated, in his chapter on property, on “the wild Indian... who knows no enclosure, and is still a tenant in common”. This Indian served as a paradigm for an original state before property became individuated and secure: “In the beginning all the world was America”. Locke decided that the American Indian was poor “for want of [165] improving” the land by labour. Since labour (and improvement) constituted the right to property, this made it the more easy for Europeans to dispossess the Indians of their hunting grounds. The Puritan colonists were ready to moralise their appropriation of Indian lands by reference to God’s commands, in Genesis 1, 28, to “replenish the earth, and subdue it”.10
Hunting, fishing, and even planting some unfenced patches of corn and squash clearly fell far short of “subduing” the earth. (In any case, the work was left to the women.) It could not be said to be “improvement” and therefore its claim to establish rights of property was slender. The same improving mind-set, whether in Old England or in New, found reprehensible the lack of useful productive labour, whether on the ill-governed forest or waste or in the Indians’ hunting grounds. In the English cottager and “the wild Indian” alike there was seen a degrading cultural submission to a picaresque, desultory or vagrant mode of livelihood. “Forests and great Commons”, John Bellers wrote, “make the Poor that are upon them too much like the Indians . . .” Commons were “a hindrance to Industry, and. . . Nurseries of Idleness and Insolence”.11 Security of property is complete only when commons come to an end.
The same notions of property-right accompanied the earliest British colonists in the South Pacific. In 1770 Cook claimed the east coast of New South Wales for the Crown, not because it was empty of aborigines but because “we never saw one inch of cultivated land in the whole country”. Title could therefore rest on “discovery”, or vacuum domicilium. Title could not be claimed so easily in New Zealand lands, in which both settlement and cultivation was so evident. The trouble was that property rights among the Maori were insufficiently individuated and absolute. James Busby, the British Resident, allowed in 1835 that – [166]
As far as has been ascertained every acre of land in this country is appropriated among the different tribes; and every individual in the tribe has a distinct interest in the property; although his possession may not always be separately defined.12
As in New England, setting land loose onto the market was complicated by communal claims upon property. In comparison with their American forerunners, the Maoris were fortunate in that by the time of colonisation the procedures under which the “Pakeha” settlers appropriated land were a little more scrupulous. The Maoris were also numerous and formidable at war. The Treaty of Waitangi (1840) was the most serious attempt made to match capitalist and communal notions of property in land, and the complexity of this task is witnessed by the fact that arguments as to the treaty’s interpretation occupy a central place in New Zealand’s political life to this day.
But while it was possible for the colonial power to draw up treaties with native nations or tribes (as was done also in many North American cases), it was a different matter when rights to property in land came to be cashed in law. How could land be loosed for the market when even a hupa, or sub-tribe, might share among hundreds of persons communal rights in land? A solution must either be political and sociological or it must be legal. As to the first, it was necessary to bring about -
The detribalisation of the Natives – to destroy, if it were possible, the principle of communism which ran through the whole of their institutions. . . and which stood as a barrier in the way of all attempts to amalgamate the Native race into our own social and political system.13
As to the second, New Zealand law attempted to deal with it under the Native Land Act of 1865 whose aim was to assimilate native rights to land “as nearly as possible to the ownership of land according to British law”. Since British law could never recognise a communist legal personality, section 23 of the Act ordered that communal rights could not [167] be vested in more than ten persons. A Maori witness testified: “When the Crown agent was ordered, the Court told us to go outside to arrange whose names should be in. We went outside – perhaps one hundred of us. We picked those who were to be in the grant.” This fraudulent device was then pleaded as “according to Maori custom”.14
The notion of absolute property in land which triumphed in England in the late eighteenth century had both a legal and a political aspect. Property in land required a landowner, improving the land required labour, and therefore subduing the earth required also subduing the labouring poor. As Lord Goderich, the Colonial Secretary, remarked in 1831 (with reference to Upper Canada):
Without some division of labour, without a class of persons willing to work for wages, how can society be prevented from falling into a state of almost primitive rudeness, and how are the comforts and refinements of civilised life to be procured?15
Hence property-plus-improvement required the model of the local property-owner in whose nexus were combined economic, social, and perhaps judicial authority over his labourers, on the model of the English country gentleman (and perhaps JP).
The most ambitious projects to transpose both the law of property and the sociological model of a landowner into an alien context were the succession of land settlements imposed by British administrators upon India. The earliest of these the Permanent Settlement of Bengal – offers a paradigm of the mind-set which has been my theme. Although the Settlement finally took form in the proclamation of Lord Cornwallis, the Governor General (22 March 1793), it had, as Ranajit Guha has shown, a long prehistory.16 Proposals of [168] mercantilist, physiocrat and of Smithian political economists alike all agreed in the need to establish security of property, and all converged upon a solution which would vest these permanent property rights in the zemindars. Alexander Dow, the author of The History of Hindostan (1768) doubted the supposed zemindary title to property-rights. Land (in his view) was owned by the “Crown” or Moghul emperor, and while granted to the zemindars – who in effect were civil and administrative officers of the empire and collectors and guarantors of revenue – it could not be said to be owned, absolutely and exclusively, by them. In theory at least the grant could be revoked. Nevertheless Dow favoured the settlement of the land upon the zemindars, as an alternative to the corrupt and oppressive system of “farming” out the revenues (which many observers believed had contributed to the terrible famine of 1770). “An established idea of property is the source of all industry among individuals, and, of course, the foundation of public prosperity.”
This argument derived title to land from the real or presumed grant from the Moghul power to the East India Company, along with the revenues attached to the land. Philip Francis – perhaps because he felt that this title was insecure – disputed the “erroneous opinion” that in the Moghul empire the governing power had been proprietor of the soil. He preferred to exalt zemindary proprietary rights, and cited as proof “the inheritable quality of the lands”. In this he mistook the heritable character of zemindary office to manage the lands and collect their revenue – for the ownership of the lands. And if Francis had reflected there were plenty of examples of heritable rights and claims over land, which fell far short of absolute property, acknowledged in English law: the most common being copyhold.
One need not be a specialist in the complexities of South Asian agrarian systems to see that these disputants were trying to compress their features into a modernising – or “improving” – English mask. With the English landowner and JP in his mind, Francis wrote that “zemindars are or ought to be the instruments of government in almost every branch of the civil administration”. He even compared the zemindar to the Lord of the Manor. Once a Bengal gentry had been established, then the rest of the desired socio-[169]-logical model could hang from that – “those intermediate gradations of rank, authority and responsibility, by which all great civil societies are held together”, and formed into “successive ranks of subordination”.17 This also was a part of the accepted rhetoric of all British parties. Amongst these voices, only that of Warren Hastings and his close circle the very people whom the improvers indicted as bandits and parasites enriching themselves by farming out the Company’s revenues – suggested settling the land upon the ryots, the actual cultivators. It is probable that Hastings was making a debating-point and was not serious.
Charles Cornwallis took up his duties in Bengal just before the French Revolution. It would be interesting to know in what ways he had assembled his notions as to what was proper to the ownership of land. His father had made a fortunate marriage into the Townshend-Walpole clan from whom, no doubt, young Charles had learned not only about turnips but about the patrician arrogation of superordinate rights. A short tenure of office as Chief Justice in Eyre south of the Trent may have taught him to abhor indistinct forest usages. His service in the American Wars will have given him adequate opportunity to meditate on the difference between improved and unimproved lands. “Improvement was a key word which frequently occurred in his minutes and correspondence.”18 In intervals from service his seat was at Culford in Suffolk. Two miles away was Timworth, where, in 1787 – the year after Cornwallis sailed for Bengal – Mary Houghton’s flagrant contempt of property-rights occasioned the celebrated judgement against gleaning. Peter King has examined the Cornwallis estate papers, and he has established that the offending Houghtons were indeed within the Cornwallis lands and had given offence to his steward or estate manager, being petty proprietors of a cottage with common rights who had been able to block a cherished plan of enclosure and reorganisation on the Cornwallis lands. It is possible that this could have been the reason for the selection [170] of Mary Houghton for prosecution for gleaning.19
Dr King has discovered no reference to the ferocious Mary Houghton in Cornwallis’s surviving correspondence. But we need not suppose that the Governor General of Bengal followed every detail of rationalisation on his distant Suffolk estate. He was content to leave mundane decisions to his brother, the bishop of Lichfield. No doubt the brothers shared the same Whiggish, improving outlook. Professor Guha has shown one intellectual origin of the Permanent Settlement in physiocratic thought, but the less theoretical praxis of the Whig patricians was of equal significance.20 As a historian of my father’s generation – in point of fact, my own father – noted: “The same era that saw the English peasant expropriated from his common lands saw the Bengal peasant made a parasite in his own country”,21 I and this was done by the same mind-set, the same legal dicta of absolute property-right, and sometimes by the same men.
The immediate motive of the Permanent Settlement was convenience in collecting the revenue and the need to check the abuses of collection. But behind this lay a Whiggish model of class relations, in which – as Locke had written “subduing or cultivating the earth, and having dominion, we see are joined together”. Dominion gave security to exclusive rights in property, and landed property was the proper station not only for planting turnips but also for planting [171] political interest. Sir Henry Strachey wrote in 1802 that we are anxious to secure the “assistance of the men of property and influence in preserving the peace throughout the country”, but such rights of property should be invested “only in estates of a certain extent”:
There are no gentlemen, in whose honour and probity, in whose spirit and activity, government can repose confidence. There exists not between the common people and the rulers, a middle order, who respect their rulers, or are by them respected; who . . . could . . . exert themselves heartily and effectually, each in his own sphere, for the public good. Such a set of men in the society, is here unknown.22
The intention of the Permanent Settlement was to establish a Whig gentry, and the role was given to the greater zemindars, “for preserving order in civil society”.23 The measure “was effected to naturalise the landed institutions of England among the natives of Bengal”.24 It is inadequate to describe the zemindars’ true status as that of “hereditary rentcollectors”. Even this implies that some direct translation is possible between two radically incompatible systems of landholding. There simply was no way of converting the practices and customs of Bengal and Bihar or Orissa into a common specie to be exchanged with English practice and common law. As Sir William Hunter was later to write:
My own investigations point to an infinite gradation in the rights of the various classes interested in the land. In some districts the landholder was almost independent of the Mussulman Viceroy . . . in others he was only a bailiff appointed to receive the rents. In some districts, again, peasant rights were acknowledged, and the old communal system survived as a distinct influence; in others the cultivators were mere serfs. This is the secret of the contradictory objections which were urged against Lord Cornwallis’ interpretation of the land-law . . . Those collectors who had to deal with districts in which the landholders were the real owners of the soil, complained that the Permanent Settlement had stripped them of their rights and ruined them; while those who had [172] derived their experience from parts of the country in which the Mussulman system had uprooted the ancient houses, objected that Lord Cornwallis had sacrificed the claims of the Government and the rights of the people to elevate a parcel of tax-gatherers and land-stewards into a sham gentry.25
This referred to rural Bengal. When Hunter came to consider the subsequent settlement of Orissa (1804),26 his account was even more nuanced. Taking as his theme “Inchoate Proprietory Rights”, he distinguished more clearly between a right of “ownership” vested under the Hindu dynasties in the prince, and a right of “occupancy” vested in the village community or in the cultivators. In between there was a complex hierarchy of tax collectors, land stewards, accountants, down to village heads, whose status was consolidated for the convenience of Moghul revenue and role:
A long chain of intermediate holders grew up between the Ruling Power which had the abstract ownership and the Cultivator who enjoyed the actual occupancy. Thus the superior Landholder (zamindar) received the rent from a subordinate Tenure-holder (taluqdar), who gathered it from the Village Heads, who often collected it by means
of . . . Village Accountants, who levied it from the individual husbandmen. Each of these had his own separate set of proprietary rights . . . Their rights, from the highest to the lowest, consisted in a title to finger the land-tax and pass it on.27
But even this account (Hunter warned) was “clearer and more systematic” than his evidence warranted, “for English words referring to landed rights have acquired a fixity and precision which they could not possess during a period of inchoate growth”. What the Permanent Settlement in Orissa attempted to do (following upon the example of Bengal) was to erect the zemindar’s “quasi-hereditary, quasi-transferable office of managing the land and transmitting the landrevenue, into a full proprietary tenure”. Yet this title to property remained in some sense “abstract”, since even [173] “ownership” could not give to the new “owners” possession or occupancy of the land “as these belonged for the most part to the actual cultivators”.28 In all the debates of the 1770s to 1790s, the Whiggish British mind had largely passed over without consideration the rights of the ryots or real possessors of the land.29 British administrators “defined and consolidated the title of the Landholders, and left the rights of the Cultivators unascertained. The former received a legislative status; the latter did not”.30
Sir Charles Metcalfe saw the Permanent Settlement of Bengal as “the most sweeping act of oppression ever committed in any country, by which the whole landed property of the country had been transferred from the class of people entitled to it, to a set of Baboos, who have made their wealth by bribery and corruption”. Lord Cornwallis (he said) was celebrated as “the great creator of private property in land in India”. “I should say . . . that he was the creator of private property in the State revenue, and the great destroyer of private property in India, destroying hundreds of thousands of proprietors for every one that he gratuitiously created. . .”31
Metcalfe argued that
The real Proprietors of the Land are generally Individuals of the Village Communities who are also, for the most part, the natural occupiers and cultivators of the Land.
The injustice had been done by those who “wishing to advocate the rights of private property, applied English ideas and systems to India”, and “classed the cultivators of India, the poor but lawful hereditary possessors of the land, with the labourers of England”.32 What Metcalfe did not see, or say, was that the dispossession of the commoners of England, and the English common law’s insistence that “the nature [174] of property . . . imports exclusive enjoyment” were the templates for the Settlement of Bengal.
Metcalfe was perhaps the most humane of those whom Erie Stokes described as mounting a paternalist or Burkean romantic reaction to Cornwallis’s measures. (Since Burke was an advocate of political economy (below p. 252) and was not noted for defending the rights of commoners, the adjective may be misplaced.) The ideological battles within British ruling groups were fought out upon the Indian land. Subsequent Settlements withdrew from the simplistic Whig model. In Madras and Bombay Munro’s ryotwar system sought to invest property rights in a yeomanry or middle peasantry.33 Metcalfe sought even to sustain the communal property of the village. But the administration’s inexorable demands for revenue, and its dispossession of defaulters, collapsed all intentions. After these came the utilitarians, a modernising urban liberalism of individualism, money and the market, contemptuous of the landed aristocracy and of “Gothic” or Hindu custom, and (with Bentham and James Mill) eager to impose administrative accidental despotism upon the East. Later again, commencing with Burma and extending in this century to West Africa, there was, in a remarkable series of reversals of Whig ideology, the settlement of extensive lands in the superordinate ownership of the State, combined with measures to inhibit the growth of private property in land.34
But all that belongs to a different epoch of imperialism, more preoccupied with the rights of money than with property in land. In Africa colonialism learned how to co-exist with tribal land usages and with customary law, indeed to invent customary law or to codify and institutionalise it in such ways as to create a new and more formal structure of rule.35 One consequence might be the development of [175] a dual economy and dual regimen, the one “modernised” and fully marketised, the other (indirect rule) sequestered within “custom”, where the penetration of market forces was left to loosen labour more gently from the land, and to dissolve traditional forms of communal, or familial property-statute. The processes have not been (and are not) univocal, and there is a growing expert literature on customary law which should signal caution to a novice. Nor should we expect that the history of property in land could be written out in one single overarching theme, such as the triumph of possessive individualism, spanning the continents and centuries. The Permanent Settlement in Bengal was the zenith in the long ascent of the ideology of the patrician Whigs and the great gentry whom I still insist on seeing as an agrarian bourgeoisie. And by its very excess and doctrinaire impracticability it was also that ideology’s reductio ad absurdam.

ENDNOTES
1 See lstvan Hont and Michael lgnatieff (eds.), Wealth and Virtue (Cambridge, 1983), p. 36.
2 Ibid., p. 35.
3 C. B. Macpherson, “Capitalism and the Changing Concept of Property”, in E. Kamenka and R. S. Neate (eds.), Feudalism, Capitalism and Beyond (1975).
4 See the overview by G. R. Rubin and David Sugarman (eds.), Law, Economy and Society (Abingdon, 1984), esp. pp. 23-42. Also P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, 1979), pp. 85-90.
5 Blackstone, op. cit., ii, pp. 2, 8.
6 Hont and Ignatieff, op. cit., p. 25.
7 Annals of Agriculture xiii (1804), p. 497, describing Morden Guildon, then under enclosure, where the cottagers had been in the habit of keeping cows, wintering them in the farmers’ yards at 6d. per week, in summer leading them on balks, etc.
8 Hont and Ignatieff, op. cit., pp. 24-6.
9 W. Pennington, Reflections on the various Advantages resulting from the Draining, Inclosing and Allotting of Large Commons and Common Fields (1769), pp. 32, 37.
10 An excellent study which brings legal and ecological themes together is William Cronon, Changes in the Land.. Indians, Colonists and the Ecology of New England (New York, 1983). I am at work on a study of these issues, in relation to the Mohegans of Connecticut, which I hope to conclude shortly.
11 A. Ruth Fry, John Bellers, 1654-1725 (1935), p. 128.
12 Claudia Orange, The Treaty of Waitangi (Wellington, 1987), p. 38.
13 Henry Sewell in New Zealand Parliamentary Debates, 9 (1870), p. 361: see Keith Sorrenson, “Maori and Pakeha”, in W. H. Oliver (ed.), The Oxford History of New Zealand (Oxford, 1981), p. 189.
14 See D. Williams, “The Recognition of ‘Native Custom’, in Tanganyika and New Zealand – Legal Pluralism or Monocultural Imposition?” in Sack and Minchin (eds.), Legal Pluralism (Canberra Law Workshop, VII, ANV, 1985), pp. 139-54: a lucid and helpful study.
15 Cited by Bryan D. Palmer, in “Social Formation and Class Formation in North America, 1800-1900”, Proletarianization and Family History (1984).
16 In the next page or two I have drawn heavily upon Ranajit Guha, A Rule of Property for Bengal (Paris, 1963), and also R. B. Ramsbotham, Studies in the Land Revenue: History of Bengal 1769-87 (Oxford, 1926).
17 Ibid., pp. 105-22. Philip Francis’s plan (which was rejected) was presented in 1776, the same year as the publication of The Wealth of Nations.
18 Ibid., p. 172.
19 I first suggested a connection between the Mary Houghton case at Timworth and the Cornwallis estates at Cuiford when I lectured at an Open Meeting of the Past and Present Society on “Law, Use-Rights and Property in Land” in March 1986. This was based on guesswork only. Dr Peter King has now established that there was such a connection, and his thorough examination of “The Origins of the Gleaning Judgement of 1788” is forthcoming.
20 James Mill in The History of British India (1817) voiced the utilitarian reaction when he referred to Cornwallis’s “aristocratical prejudices”. It is not clear why Dr Guha (op. cit., pp. 170-1) should reprove this as “exaggerated language”. It is surely a correct description?
21 Edward J. Thompson, The Life of Charles, Lord Metcalfe (1937), p. 268. “The Permanent Settlement was made in the face of substantial awareness of the facts, in order to clamp down everlasting quietness on these matters of revenue and land possession rights; and it was made by men who could not conceive any better arrangement than that under which England’s innumerable Tolpuddles enjoyed such happiness”.
22 Fifth Report from the Select Committee of the House of Commons on the Affairs of the East India Company (1812), ed. W. K. Firminger (Calcutta, 1917), ii, pp. 609-10.
23 Cornwallis, cited in Eric Stokes, The English Utilitarians and India (Oxford, 1959), p. 5.
24 Sir Richard Temple, cited in Edward J. Thompson and G. T. Garratt, Rise and Fulfilment of British Rule in India (1935), p. 191
25 W. W. Hunter, The Annals of Rural Bengal (1883), pp. 373-4.
26 W. W. Hunter, Orissa (Calcutta, 1872), “being the second volume of the Annals of Rural Bengal”, notably ch. 9. The settlement of Orissa was undertaken more scrupulously than that of Bengal, and was procrastinated from 1804 to 1815 to 1836 to 1866 (p. 257).
27 Ibid., pp. 214, 221-7.
28 Ibid., pp. 227-8, 255-6, 260- 1.
29 An exception is in the Minutes of the able administrator, John Shore, see Guha, op. cit., pp. 192-4. Also Charles William Boughton Rous, Dissertation Concerning the Landed Properly of Bengal (1791).
30 Hunter, Orissa, pp. 264-5. Even in the case of Bengal it became belatedly necessary (Act X of 1859) to recognise the “Right of Occupancy” (p. 228).
31 Thompson, Metcalfe, pp. 267-8.
32 Ibid., esp. pp. 130-40.
33 See Stokes, op. cit., pp. 15, 18-22.
34 See especially Robert Shenton, The Development of Capitalism in Northern Nigeria (Toronto, 1986), ch. 3, for an account of the interlocking pressures of bureaucracy (the expediency of taxation), merchant capital, and “Single Tax” socialist idealism which led to this reversal.
35 See Terence Ranger, “The Invention of Tradition in Colonial A,frica”, in Eric Hobsbawm and Terence Ranger (eds.), The Invention of Tradition (Cambridge, 1983), esp. pp. 251-62. Even the act of writing custom down could formalise it and expose it to new meanings and manipulation: see Goody, op. cit, PP. 133-56; Don F. McKenzie, “The Sociology of a Text: Oral Culture, Literacy and Print in Early New Zealand”, in P. Burke and R. Porter (eds.), The Social History of Language (Cambridge, 1987).
Directory: courses -> lawdemo -> FTP
FTP -> Canadian Perspectives on Law and Society: Issues in Legal History
FTP -> Citation: Bruce Kercher, The Unruly Child: a history of Law in Australia (Sydney: Allen & Unwin, 1995), pp XI-XXI introduction english Flotsam
FTP -> Chapter 2 — the contradictions of convict law freedom and the lash, 1788-1820
FTP -> Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 1-28 1 The Aboriginals and their Law
FTP -> Citation: Richard Broome, Aboriginal Australians 2nd ed., (Sydney: Allen and Unwin, 1994), pp. 9-21 1 Traditional Life
FTP -> Chapter 3 — property, geography, and british columbia’s courts
FTP -> Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 55-73 3 Juristic Wisdom in Solomon’s Theatre
FTP -> Chapter 2 — the contradictions of convict law the impossibility of strict law, 1820–1840


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