Eyre Lines

I recently followed a link to a TED talk by a native American, which deals largely with the question of land ownership. It is very much worth viewing, particularly for anyone from North America, Australia or New Zealand. One issue about it which wasn’t made much of in the talk was that the Native American concept of ownership (inasmuch as it’s a concept of ownership at all) is of communal ownership – the tribe is owner, individuals aren’t, whereas the immigrant/European/Enlightenment concept is of individual land ownership, with (perhaps) a concession to communality in federally owned land, which seems to be against the fudamental principles of the American right. Clearly, it’s somewhat easier to talk of very long term land ownership when it’s a people rather than a succession of individuals who are “owners”. I use inverted commas there, because I think the concept of ownership with respect to land is a vexed one. Some Native American thinking might be along the lines of those friends I mention in the linked post who feel more that their property owns them rather than that they own the property – they are custodians or trustees of the land rather than owners who can do with it what they will, but even then it is a communal custodianship. The early Hebrew conception seems to have been similar – at Jubilee, land had to be returned to the tribe (one of the 12) to whom it was originally allotted; it is less clear that it had to be returned to an individual or individuals within that tribe. Yes, the strict wording talks of the individual there, but the year of Jubilee was only once every 50 years, while life expectancy was more like 30 or 40 years, so it was definitely not aimed at individuals, at best family groups.

I do not live in any of the areas settled by Europeans against the interests of indigenous populations; the last time Yorkshire was settled against the interests of the indigenous population was in 1066 onwards, with the Norman conquest. In point of fact, the house in which I now live can be traced back to around 1815, at which point it seems to have been built by the then Lord of the Manor, the Earl of Londesborough, a member of the Darcy family. There’s a significant probability that at some time before that, the Darcys appropriated it from local peasants under one of the Inclosure Acts, but that would have been a legal action, though not one I would regard as wholly ethical (a point to which I’ll return). There’s a very high probability that the Darcys or their (legal) predecessors acquired the Manor from the Crown at the time of the conquest. The Crown will have acquired it by conquest, as shortly after the conquest, the North rose up against the Norman invaders and was very harshly dealt with, but Selby and Brayton don’t appear in the Domesday Book, so there’s no record of that.

And, sometime before that, the Saxon (or Anglian) owners will have acquired the land by conquest from British people (probably the Parisi), who probably owned the land in common, much as the native Americans used to. The Saxon or Anglian owners may have owned it in common themselves, but land ownership under the Saxons did become more individual. It may have passed through the hands of some Vikings from the Kingdom of Yorvik (modern York) and at various times seems to have formed part of the British Kingdom of Elmet and the Anglian Kingdom of Northumbria. Each took the land by conquest.

The point I make here is that even in a country with settled land occupation for over 1000 years, somewhere in the past of any piece of land is likely to have been an occasion when it was taken by force from someone else. There are, however, no British, Saxon or Anglian tribes with an existing identity and a history going back to those times to claim the land back from me.

Of course, at the time they lost what eventually became my house, it was a small corner of a field or wood, and worth very little; now it has a substantial house on it, and is served by roads, gas, electricity, mains drainage and telephone lines. The mains drainage and gas supply were laid at the expense of my family, and the house would have been a ruin by now were it not for a substantial amount of money we’ve spent on it. Actually, the house would almost certainly not exist – 10 years ago, we explored the possibility of selling it, as we were at the time in a horrible financial situation, and the only offers were from developers who wanted to tear it down. As of today, it’s definitely worth more with the house as it now is.

So we can claim that we’ve improved the land (and that its value has been improved by other factors which my family can’t lay claim to, such as good roads, other infrastructure, the growth of the town giving it a desirable location, the fact that this area is zoned for residential use and the general land shortage in the UK). I say “claim” because, if you want to use it as, say, agricultural land, the value is negative – it would cost more to demolish the house and return the plot to usable agricultural land than the resulting land would be worth (I was once put off buying a very characterful but derelict house by a surveyor on the basis that the demolition costs would be more than the site value…). This is important, because claims that land has been improved are often raised as a reason why previous owners who have been dispossessed should have been dispossessed.

That said, I think there is some merit in the idea that land has been occupied and used. For a house or flat up to a small farm, it seems reasonable to me that the person who (or whose family) has actually been using and occupying the land for many years has a claim to it. Certainly that agrees with the instinctive reaction of people who have been doing that, that “this is my land”. People seem to vary in how long they need to live somewhere before it becomes “theirs” – some people I know who move from flat to flat on a regular basis get no such sense, but then again some move into a property and immediately feel it to be “home”. There is, however, a problem with this which goes back to and beyond Biblical times, the conflict between the farmer and the herdsman (Cain and Abel, or the pastoralist Israelites versus the agricultural Canaanites) and which forms part of the plot of many Westerns (the cowboy is in conflict with the farmer who doesn’t want herds of cows driven over his crops). The cowboys, the Native Americans and all hunter-gatherer cultures have the disadvantage of needing wide open unenclosed spaces which tend to appear empty and unclaimed to the farmer.

I mentioned the Inclosure Acts earlier. These days, a landlord would frequently not be able to appropriate land to their own use, and certainly couldn’t do that with land which had been in common use for a long time (though the law as it stands doesn’t envisage creation of any new commons), but government entities can expropriate fairly easily, giving compensation (in the UK, Compulsory Purchase, in the US Eminent Domain). In a sense, that does (generally extremely briefly) return land to common ownership. We don’t, however, look kindly on people taking land without adequate compensation, whether it be governments or private landlords redeveloping a site. The Inclosure Acts were no exception as far as land specifically allocated to individuals was concerned, but didn’t compensate for loss of commons or the use of “waste” (but occupied) land at all adequately – and, sitting in the 21st century, I think that was wrong. At the very least, generous compensation should be given to people who are actually occupying and using land – and that’s another place where I think Compulsory Purchase and Eminent Domain fall down.

They also, to my mind, fall down when used to assemble land and put it in the hands of another private individual or corporation. Libertarians are typically incensed by any use of those powers, but I can envisage them being justified where there is an overpowering public good being served – for instance the construction of a new transport link. Where the end result is another supermarket or commercial development, however, I am less happy. Typically, this is government using its powers in the service of the economically strong at the expense of the economically weak.

The Inclosure Acts were, however, generally thought of as being a progressive move at the time. They enabled agriculture to be conducted on a much larger scale, with the removal of the mediaeval strip fields, and contributed to a massive gain in agricultural productivity. But they destroyed a more communal way of growing food, and contributed to the end of village life as it had previously been, and no serious thought was given to repairing either of those damages. Nonetheless, they were not considered to be major breaches of general principles by the majority of people.

Indeed, at the time they occurred, none of the transfers of ownership by conquest which I outlined will have been generally thought of as breaches of general principle. The right of conquest was a well-established principle at least until the Nuremberg trials and possibly until the UN resolved against it as late as 1974 (I was actually rather suprised to find that it was so late – that does mean, among other things, that the German offensives of 1939 onwards could not unreasonably have been thought of as legitimate conquest until Nuremberg decided otherwise retrospectively, though only really for Europe).

So where does that leave me? I instinctively sympathise with the speaker in the TED talk from my 21st century, post UN resolution perspective, but the expropriations he talks of were carried out before the world decided that “right of conquest” was outdated and conquest should no longer be condoned (with the caveat that native lands are still, to some extent, being expropriated in the States and elsewhere, just on a much smaller scale and using, for instance, Eminent Domain). However, most of the former Native American land has been in the hands of others for well over 100 years now, longer than the memory of anyone now living stretches. I would also instinctively sympathise with anyone who had in good faith bought land which was formerly Native American and had occupied and used it as their own for many years, possibly even for a short period. There has to be some kind of balance to be established. Certainly I have major misgivings about retrospective laws (there is something deeply wrong about declaring something to be the case when none of those involved at the time thought it was, most notably where something is made a crime after the event).

Indeed, perhaps we should consider that rights in land are extinguished after some period of time has passed without effective action having been taken to enforce them, even where there was such a disparity in power that no effective action could ever be taken. I’d certainly tend to take that view were any Parisii, Romans, Angles, Vikings or Saxons to come along and suggest either that I should return the land to them or pay them compensation for having been dispossessed of it; my claim ultimately rests on the Norman conquest in 1066 onwards (specifically the campaign to subdue the North in 1069), and I’m inclined to think that nearly 1000 years should be sufficient. There are, in any case, no surviving nations of any of those, assuming that the Italians, Danes, Norwegians and Germans don’t claim for their former colonists! (The Parisii vanished without trace into the general population, and indeed actually so did all the other actual colonists, even though their home countries can be thought of as surviving in a sense, and given that my ancestors have been in this general area for the last 750 years at least, I probably share the genetics of all of them).

In the case of personal claims, English law does prescribe a limitation period; 12 years. If you’ve taken no action to try to recover land within that period, you can’t sue later (though there’s an exception while you’re “under a disability”, such as being insane or too young). Indeed, if you’ve been in exclusive possession for 12 years, you can actually claim title. It’s more difficult to claim in either direction when rights over land are involved, as they tend to be only occasionally exercised – 20 years in the case of a claim to a right of way, for instance (it’s far more difficult to extinguish a right of way once granted). That, of course, assumes the existence of a court (and a higher authority) to enforce rights, and it’s worth mentioning that in the case of losing land by limitation, it’s specifically a court application which counts – going onto the land and trying to take it back by force doesn’t… Personally I incline to thinking that the 12 year period is a bit short, but possibly there’s a nod there towards the “use” concept of ownership – if you aren’t using it, you arguably can’t really be said to own it. Opinions vary, and I’ve heard people argue that loss of land should be something you can recover as long as those dispossessed are still alive, including any who were under age at the time of the dispossession. Rarely, however, have I heard people argue that personal claims should extend to future generations.

Of course, with the kind of situations the TED talk deals with, there was no higher authority available, no court to ask for redress.

In addition, there’s the issue of a different conception of ownership when an individual and a group (for instance a tribe or nation) are involved. Almost nobody, I think, would suggest that a nation should lose land merely because it had been occupied for 12 years by someone else. At least, not in the 21st century.

But that leads to the question of “How long?”. I’ve suggested that 1000 years is too long (although Israel might be regarded as a counter-example). Is 100 years too short? Certainly, many Native Americans (and indigenous peoples of other colonised lands) think it is. I wonder if there’s a “right” perspective. Some balance between the rights of a dispossessed people and those who have (arguably entirely innocently) been actually in occupation of the land for quite a few years? Should such rights steadily reduce over the years, or should they continue unabated where the dispossessed have no means of asserting them? I don’t know. But I do know that land law could get very interesting were such rights to be recognised!