3.2 Do People Hold a Right to Exist? Part 2

With Pope Alexander III’s blessing, William, Duke of Normandy, invaded England defeating King Harold Godwinsom at the Battle of Hastings October 14, 1066. On December 25, 1066 William was crowned King of England. The Norman king seized large tracts of the best land. He granted portions as payment for his nobles’ loyalty, and reserved vast Royal Forest for himself.¹ The land William seized was the “commons”: land held collectively by English commoners. Stories of late thirteenth century Robin Hood noted peasants were executed for killing game in the Royal Forests. However accurate the myth, seizing commoners’ land by force of arms marks the conservative river. People had no right to hold or live on land more powerful people wanted.

Granting land and title did not protect nobles from arbitrary arrests, banishments, or executions, especially from the whims of future monarchs. When William returned to Normandy in 1075 Earls Ralph de Gael, of Norfolk, Roger de Breteuil, of Hereford, and Waltheof, of Northumbria, unsuccessfully conspired to overthrow him in the “Revolt of the Earls”. Facing continuing threat of rebellion his successor, William Rufus, promised in 1088 then 1093 to seal a charter upholding good law and repudiating King’s past oppressions. His successor, Henry the First, promised to seal the charter after bad dreams.

King John finally sealed the Charter of Liberties in June, 1215. He immediately asked Pope Innocent III to nullify the Charter. The Pope ruling the Charter infringed on Divine Right.

Why is the Charter of Rights important?

The Charter was the first binding declaration that the King (government) was not above the law. It became the foundation for individual rights and limited government. Habeas corpus grew from the rights to demand formal charges, a fair trial, to confront accusers. However, only “free persons” enjoyed those rights, which focused more on the property of Church and nobility.

It was the loss of shared land, however, that directly threatened commoners’ lives. As the Wendat and Norwegian Code of the Realm held, rights are meaningless without a means to sustain life.

Pressured by civil war and barons’ threats, in 1217 King John sealed the Charter of the Forest releasing seized lands and affirming rights. For eight hundred years the Charter of the Forrest protected individuals’ right to access resources to preserve their lives. The Magna Carta (combined charters) gradually extended full rights to all persons.

In simple terms the Charter of the Forest meant that anyone could find clay in the commons to make and sell pottery. Cut down trees to make furniture. Graze sheep to weave wool. The commons provided the same protection to individuals that the open frontiers provided American colonists: the “freedom to refuse”. If the only available settled community jobs were too exploitative people could leave for the frontier.²

Although enclosure of the restored commons³ reappeared following the thirteenth century, modestly at first, its existence justified John Locke’s Two Treatises on Government. In 1650 people had real or symbolic access to a place to sleep and resources to preserve their lives.

Locke and the possession of land

To justify white European colonial development Locke and other writers imagined the evolution of society from primitive grazing to European civilization.⁴ Understood in hindsight, they were stunningly chauvinistic.

Locke held that every person is God’s creation with equal rights and is equally entitled to share God’s abundance. Every person could take from nature the food and things needed for them and their families to survive. You could take the apples. You could not take more than you could use. You could not take so many apples that others suffered or had to obey you to survive. The apples you picked became your property, but you did not own the tree. You couldn’t destroy it or fence it off for yourself.

That matched the rules of the commons. It pretty much described Adam and Eve in the Garden.

Your “property” changed if you saved seeds, planted them in unused land, and tended the seedlings. As the product of your labor, in fifteen years the apples and trees became your property. That remained consistent with the principles of the commons: an exclusive right to use your orchard, but you do not own the land.

When Europeans looked to colonial worlds they ignored the principles governing the commons. Locke used Terra nullius,⁵ “nobody’s land”, to argue that people gained ownership by developing “undeveloped” land. You didn’t create land, you cleaned it up. To colonial Europeans undeveloped meant “not developed by European standards”. Consequently ownership carried the rights to drive people away, even destroy land you hadn’t created.

Writing a century later Jean-Jacques Rousseau objected.

“The first man, who, having enclosed a piece of land, thought of saying, ‘This is mine’, and found people simple enough to believe him, was the real founder of civil society. How many crimes, wars and murders, how much misery and horror the human race would have been spared if someone had pulled up the stakes and filled in the ditch and cried out to his fellow men: ‘Beware of listening to the imposter. You are lost if you forget that the fruits of the earth belong to everyone, and that the earth itself belongs to no one!’ But it is highly probable that by this time things had reached a point beyond which they could not go on as they were; for the idea of property depending on many prior ideas which could only have arisen in successive stages, was not formed all at once in the human mind.“⁶

Cross-cultural studies suggest this is not true. I agree, however, with Rousseau. We are stuck with the system we have, which offers much. Like most systems, however, it has been badly abused. It is the community which sustains private property (rights). In turn property owners have a duty to sustain the community (obligations).

Next: The community cost of ownership: foregone opportunities and externalized costs.

 ¹ By 1217 there were 143 Royal Forests encompassing nearly 1/3 of England.

²  Looking forward, as the commons closed and industrialization changed the labor market, English workers fled to the colonies and the United States.

 ³ Enclosure was the process of forcing people off the commons to generate more efficient, large scale farming or grazing by wealthy businesses or landowners.

 ⁴ Noble savage, Michael de Montaigne (1580) A. R. J, Turgot (1727-1781) individual freedom is determined by technology.

 ⁵ Terra Nullius is a political-economic justification of colonial expansion, which is why it is  inconsistent with the traditions of the commons.

 ⁶ Rousseau, Jean-Jacques (translation, Maurice Cranston) Discourse on the Origin and Basis of Inequality Among Man [1754] 1984 London, Penguin