Orwell and the Enclosure of the Commons
Tribune, 18 August 1944
[“As I Please” was a regular column in Tribune from December 1943 to February 1945 and again from November 1946 to April 1947. This article is the ﬁrst part of Orwell’s 18 August 1944 “As I Please” column. The present title was not Orwell’s, but was rather applied to the article by Alexander S. Peak.]
APROPOS of my remarks on the railings round London squares, a correspondent writes:
Are the squares to which you refer public or private properties? If private, I suggest that your comments in plain language advocate nothing less than theft and should be classed as such.
If giving the land of England back to the people of England is theft, I am quite happy to call it theft. In his zeal to defend private property, my correspondent does not stop to consider how the so-called owners of the land got hold of it. They simply seized it by force, afterwards hiring lawyers to provide them with title-deeds. In the case of the enclosure of the common lands, which was going on from about 1600 to 1850, the land-grabbers did not even have the excuse of being foreign conquerors; they were quite frankly taking the heritage of their own countrymen, upon no sort of pretext except that they had the power to do so.
Except for the few surviving commons, the high roads, the lands of the National Trust, a certain number of parks, and the sea shore below high-tide mark, every square inch of England is “owned” by a few thousand families. These people are just about as useful as so many tapeworms. It is desirable that people should own their own dwelling houses, and it is probably desirable that a farmer should own as much land as he can actually farm. But the ground-landlord in a town area has no function and no excuse for existence. He is merely a person who has found out a way of milking the public while giving nothing in return. He causes rents to be higher, he makes town planning more difﬁcult, and he excludes children from green spaces: that is literally all that he does, except to draw his income. The removal of the railings in the squares was a ﬁrst step against him. It was a very small step, and yet an appreciable one, as the present move to restore the railings shows. For three years or so the squares lay open, and their sacred turf was trodden by the feet of working-class children, a sight to make dividend-drawers gnash their false teeth. If that is theft, all I can say is, so much the better for theft.
What Orwell is referencing here is the situation in England where lands held in common by small yeoman farmers were seized, with the aid of the state, by privileged families. The laws are known as the Inclosure Acts, and they allowed people to claim ownership to vast amounts of land, not through the legitimate means of homesteading, but through the illegitimate means of simply fencing said land off.
Land can become legitimately privately owned through only one means: by mixing one’s labour with the scarce resources and thereby producing something that did not exist previously. Here is how the libertarian Dr. Murray N. Rothbard explains it in his magnum opus Man, Economy, and State:
As we have stated above, the origin of all property is ultimately traceable to the appropriation of an unused nature-given factor by a man and his “mixing” his labor with this natural factor to produce a capital good or a consumers’ good. For when we trace back through gifts and through exchanges, we must reach a man and an unowned natural resource. In a free society, any piece of nature that has never been used is unowned and is subject to a man’s ownership through his ﬁrst use or mixing of his labor with this resource.
How will an individual’s title to the nature-given factor be determined? If Columbus lands on a new continent, is it legitimate for him to proclaim all the new continent his own, or even that sector “as far as his eye can see”? Clearly, this would not be the case in the free society that we are postulating. Columbus or Crusoe would have to use the land, to “cultivate” it in some way, before he could be asserted to own it. This “cultivation” does not have to involve tilling the soil, although that is one possible form of cultivation. If the natural resource is land, he may clear it for a house or a pasture, or care for some plots of timber, etc. If there is more land than can be used by a limited labor supply, then the unused land must simply remain unowned until a ﬁrst user arrives on the scene. Any attempt to claim a new resource that someone does not use would have to be considered invasive of the property right of whoever the ﬁrst user will turn out to be.
This, in fact, is precisely why the land acquisition by privileged families under the statist Inclosure Acts was not legitimate. Merely placing a fence around some unowned land does not make it your legitimate property, even with statist approval. Rather, merely the land immediately beneath the fence becomes the legitimate property of the of the erector of the fence; everything within the fenced-off area remains, properly understood, in the commons.
The problem is real. In fact, as Rothbard wrote in his The Ethics of Liberty,
there are two types of ethically invalid land titles [in addition, of course, to government titles]: “feudalism,” in which there is continuing aggression by titleholders of land against peasants engaged in transforming the soil; and land-engrossing, where arbitrary claims to virgin land are used to keep ﬁrst-transformers out of that land. We may call both of these aggressions “land monopoly”—not in the sense that some one person or group owns all the ond in society, but in the sense that arbitrary privileges to land ownership are asserted in both cases, clashing with the libertarian rule of non-ownership of land except by actual transformers, their heirs, and their assigns.
Land monopoly is far more widespread in the modern world than most people—especially most Americans—believe. In the undeveloped world, especially in Asia, the Middle East, and Latin America, feudal landholding is a crucial social and economic problem—with or without quasi-serf impositions on the persons of the peasantry. Indeed, of the countries of the world, the United States is one of the very few virtually free from feudalism, due to a happy accident of its historical development. Largely escaping feudalism itself, it is difﬁcult for Americans to take the entire problem seriously. This is particularly true of American laissez-faire economists, who tend to conﬁne their recommendations for the backward countries to preachments about the virtues of the free market. But these preachments naturally fall on deaf ears, because “free market” for American conservatives obviously does not encompass an end to feudalism and land monopoly and the transfer of title to these lands, without compensation, to the peasantry. And yet, since agriculture is always the overwhelmingly most important industry in the undeveloped countries, a truly free market, a truly libertarian society devoted to justice and property rights, can only be established there by ending unjust feudal claims to property.
Likewise, a truly libertarian society would be one in which the Inclosure Acts are recognised for the unjust and authoritarian grants of statist privilege they were. As Albert Jay Nock writes in his classic, Our Enemy, The State,
The horrors of England’s industrial life in the last century furnish a standing brief for addicts of positive [statist] intervention. Child-labour and woman-labour in the mills and mines; Coketown and Mr. Bounderby; starvation wages; killing hours; vile and hazardous conditions of labour; cofﬁn ships ofﬁcered by rufﬁans—all these are glibly charged off by reformers and publicists to a régime of rugged individualism, unrestrained competition, and laissez-faire. This is an absurdity on its face, for no such rrégime ever existed in England. They were due to the State’s primary intervention whereby the population of England was expropriated from the land; due to the State’s removal of the land from competition with industry for labour. Nor did the factory system and the “industrial revolution” have the least thing to do with creating those hordes of miserable beings. When the factory system came in, those hordes were already there, expropriated, and they went into the mills for whatever Mr. Gradgrind and Mr. Plugson of Undershot would give them, because they had no choice but to beg, steal or starve. Their misery and degradation did not lie at the door of individualism; they lay nowhere but at the door of the State. Adam Smith’s economics are not the economics of individualism; they are the economics of landowners and mill-owners. Our zealots of positive intervention would do well to read the history of the Enclosures Acts and the work of the Hammonds, and see what they can make of them.
Yet, the question remains now: What ought we do about English property titles, given that much of the land owned was acquired not through legitimate means but rather through statist privilege and legislative plunder? Again, let us return to Rothbard’s The Ethics of Liberty for the answer:
It is true that existing property titles must be scrutinized, but the resolution of the problem is much simpler than the question assumes. For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the ﬁrst person who ﬁnds and transforms them into a useful good (the “homestead” principle). We have seen this above in the case of unused land and natural resources: the ﬁrst to ﬁnd and mix his labor with them, to possess and use them, “produces” them and becomes their legitimate property owner. Now suppose that Mr. Jones has a watch; if we cannot clearly show that Jones or his ancestors to the property title in the watch were criminals, then we must say that since Mr. Jones has been possessing and using it, that he is truly the legitimate and just property owner.
Or, to put the case another way: if we do not know if Jones’s title to any given property is criminally-derived, then we may assume that this property was, at least momentarily in a state of no-ownership (since we are not sure about the original title), and therefore that the proper title of ownership reverted instantaneously to Jones as its “ﬁrst” (i.e., current) possessor and user. In short, where we are not sure about a title but it cannot be clearly identiﬁed as criminally derived, then the title properly and legitimately reverts to its current possessor.
But now suppose that a title to property is clearly identiﬁable as criminal, does this necessarily mean that the current possessor must give it up? No, not necessarily. For that depends on two considerations: (a) whether the victim (the property owner originally aggressed against) or his heirs are clearly identiﬁable and can now be found; or (b) whether or not the current possessor is himself the criminal who stole the property. Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones’s title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and ﬁnd the victim or his heir, then it is clear that Jones’s title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived “title.” Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter.
Suppose, however, that condition (a) is not fulﬁlled: in short, that we know that Jones’s title is criminal, but that we cannot now ﬁnd the victim or his current heir. Who now is the legitimate and moral property owner? The answer to this question now depends on whether or not Jones himself is the criminal, whether Jones is the man who stole the watch. If Jones was the thief, then it is quite clear that he cannot be allowed to keep it, for the criminal cannot be allowed to keep the reward of his crime; and he loses the watch, and probably suffers other punishments besides. In that case, who gets the watch? Applying our libertarian theory of property, the watch is now—after Jones has been apprehended-in a state of no-ownership, and it must therefore become the legitimate property of the ﬁrst person to “homestead” it—to take it and use it, and therefore, to have converted it from an unused, no-ownership state to a useful, owned state. The ﬁrst person who does so then becomes its legitimate, moral, and just owner.
But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief. And suppose, of course, that neither the victim nor his heirs can be found. In that case, the disappearance of the victim means that the stolen property comes properly into a state of no-ownership. But we have seen that any good in a state of no-ownership, with no legitimate owner of its title, reverts as legitimate property to the ﬁrst person to come along and use it, to appropriate this now unowned resource for human use. But this “ﬁrst” person is clearly Jones, who has been using it all along. Therefore, we conclude that even though the property was originally stolen, that if the victim or his heirs cannot be found, and if the current possessor was not the actual criminal who stole the property, then title to that property belongs properly, justly, and ethically to its current possessor.
Bringing this back to a concrete discussion of land, Rothbard writes,
We are now able to see the grave fallacy in the current programs for “land reform” in the undeveloped countries. (These programs generally involve minor transfers of the least fertile land from landlords to peasants, along with full compensation to the landlords, often ﬁnanced by the peasants themselves via state aid.) If the landlord's title is just, then any land reform applied to such land is an unjust and criminal conﬁscation of his property; but, on the other hand, if his title is unjust, then the reform is picayune and fails to reach the heart of the question. For then the only proper solution is an immediate vacating of the title and its transfer to the peasants, with certainly no compensation to the aggressors who had wrongly seized control of the land. Thus, the land problem in the undeveloped countries can only be solved by applying the rules of justice that we have set forth; and such application requires detailed and wholesale empirical inquiry into present titles to land.
Orwell’s article copyright © The Estate of Eric Blair
Peak’s comments copyleft 2011