There is a nexus of issues: property and ownership, land and Lockean rights, the Commons and enclosure, free range and fences. This has been a longtime interest of mine. It goes back to the enclosure movement in England. It led to tumultuous conflict in England and Ireland. This then set the stage for the issues in the American colonies that brought on revolution. The issues remain unsettled going into the 19th century.
There are many angles to this, but I would first offer some background. Traditional European society, as with other traditional societies, was built on various notions of shared land and shared rights. This was well established in the land known as the Commons and guaranteed as part of common law and the rights of commoners (what in the colonies came to be thought of as the rights of Englishmen), established by precedent which is to say centuries old tradition involving centuries of legal cases, going back to the early history of the “Charter of the Forest” and Quo Warranto.
In writing about Thomas Paine’s ‘radicalism’, I noted that it particularly “took shape with the Country Party, the “Country” referring to those areas where both the Commons survived the longest and radical politics began the earliest; the strongholds of the Diggers and Levellers, the Puritans and Quakers; the areas of the much older Celtic, Anglo-Saxon, and Scandinavian ancestries.” From another post that was even more scathing, it is made clear what are the consequences of the true radicalism of early capitalism in privatizing what was public: “The land enclosure movement shredded the social contract and upended the entire social order. It was the most brazen act of theft in English history. It was theft from the many to profit the few.”
This is how millions of English and Irish serfs were made landless and impoverished. In droves, they headed for the cities where many of them died of sickness and starvation. Others were imprisoned, hung, put into workhouses, or sent overseas as indentured servants. Yet more died along the way. Once they were inseparable from the land they lived on, but now their lives were cheapened and so their lives became brutal and short. The earliest indentured servants rarely lived long enough to see the end of their indenture. Those like Thomas Paine saw all of this firsthand and experienced some of it on a personal level.
This is the world out of which the American Revolution was fomented and a new nation founded. The issues themselves, however, remained unresolved. This should be unsurprising, considering Europeans had been fighting over these issues for millennia. Still, for most of history, there was a shared worldview. John Locke wrote about the right of land being based on who used it and improved upon it, but this was simply what most people took as common sense going back into the mists of the ancient world. Feudal serfs thought they had a right to the land that they and their ancestors had lived and worked on for centuries. Native Americans assumed the same thing. Yet Lockean land rights, without any sense of irony, was implemented as rhetoric to justify the theft of land.
Even so, the old worldview died slowly. The notion of private property is a modern invention. It remained a rather fuzzy social construct in the centuries immediately following the Enlightenment thinkers. This was particularly true in the American colonies and later on the frontier of the United States, as claims of land ownership were an endless point of contention. The same land might get sold multiple times. Plus, squatter’s rights had a Lockean basis. Use was the primary justification of ownership, not a legal document.
In early America, there was such vast tracts of uninhabited land. It was assumed that land was open to anyone’s use, unless clearly fenced in. Even if it was known who owned land, law initially made clear that others were free to hunt and forage on any land that wasn’t enclosed by a fence. Both humans and livestock ranged freely. It was the responsibility of owners to protect their property and crops from harm: “Livestock could range freely, and it was a farmer’s responsibility to fence in his crops and to fence out other people’s animals!” This was the origin of the open range for cattle that later on caused violent conflict in the Wild West when, like the wealthy elite back in England, ranchers enclosed public land with claims of private ownership. Barbed wire became the greatest weapon ever devised for use against the commons.
This struggle over land and rights was an issue early on. But the ancient context was already being forgotten. The traditional social order was meaningless in this modern liberal society where claims to rights were individualistic, not communal. Not long after the American Revolution, James Fenimore Cooper had inherited much family land. It apparently wasn’t being used by the property owner and, according to custom, the locals treated it as a public park. Cooper was offended at this act of trespass defended in the his neighbors making a Lockean-like claim of their use of the land. It wasn’t fenced in, as law required, to deny use by the public.
There was a simple reason for this early attitude toward land. It was an anti-aristocratic response to land accumulation. The purpose was to guarantee that no one could deny use of land that they weren’t using. This meant someone couldn’t buy up all the land in monopolistic fashion. Land had one purpose only in this worldview, in terms of its usefulness to humans. Basically, use it or lose it. And many people did lose their land according to such claims of use. That remains true to this day in US law. If a neighbor or the public uses your land for a certain period of time without your challenging their use, a legal claim can be made on it by those who have been using it. In many states, a squatter in a building can go through a legal process to make a claim of ownership.
The conflict involving Cooper and his neighbors was a minor skirmish in a larger battle. It only became a central concern with the large numbers of immigrants putting greater pressure on land ownership. This was exacerbated by conflicts with Native Americans, such as President Andrew Jackson’s forced removal of multiple tribes that had sought to gain legitimacy of legal rights to their land such as building houses and farming, along with assimilating to American culture. This act was the blatant betrayal of Lockean land rights and of the entire justification of law. These tribal members were free citizens of the United States who had both legal title and Lockean claim.
Tensions grew even worse after the Civil War. That was when settlers claiming land ownership came into conflict with both Native Americans and open range cowboys. Then as the railroads encroached, many squatters were kicked off their land, Lockean land rights be damned once again. Interestingly, Abraham Lincoln as a young lawyer worked for the railroad companies in kicking these poor people off their own land. As president, Lincoln wasn’t any kinder to the Native Americans, for the progress of capitalism superseded all quaint notions of rights and ownership.
Another point of conflict was Emancipation (see Ballots and Fence Rails by William McKee Evans). All of the freed blacks became a major problem for the racial order, not unlike how feudal serfs had to be dealt with when feudalism ended. Emancipation also caused disarray in relation to land and property. The Civil War decimated the South. In the process, a large number of Southerners were killed or displaced. There was no one to tell blacks what to do and so they went about living their own lives, squatting wherever they so pleased as long as it wasn’t occupied by anyone else. There was plenty of land for the taking.
This was intolerable to the white ruling class, despite it being entirely within the law. Fraudulent charges were brought against blacks with accusations of trespass, theft, and poaching. It was assumed that anything a black had couldn’t rightfully be theirs and so everything was taken from them, even property they had bought with money made with their own labor. Blacks were often forced off their land and made to return to their former plantations, now as sharecroppers… or else made into forced prison labor, since the law only made private and not public slavery illegal.
All of this led to property laws becoming more narrow and legalistic. Over time, further restrictions were placed on the public use of lands. The Depression Era was the last time when large numbers of Americans were able to live off of the commons. My mother’s family survived the Depression by hunting and foraging on public land and on open private land, as did millions of other Americans at that time. Yet conflicts still happen, such as the Bundy standoff where ranchers thinking they were cowboys in the Wild West pointed guns at federal agents over a disagreement about grazing rights on public lands. It’s amusing that these right-wingers, however misguided in their understanding of the situation, were fighting for the public right to the commons.