Early Modern Conceptions of Property

John Brewer, Susan Staves, John Brewer, Susan Staves

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781136190858
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Early Modern Conceptions of Property draws together distinguished academics from a variety of disciplines, including law, economics, politics, art history, social history and literature, in order to consider fundamental issues of property in the early modern period. Presenting diverse original historical and literary case studies in a sophisticated theoretical framework, it offers a challenge to conventional interpretations.

1

Introduction

John Brewer and Susan Staves

Now, in the 1990s, America and Western Europe watch in astonishment as the peoples of the former Soviet Union move to reintroduce private property in land. In Poland and other Eastern European countries, Western economists offer advice about how to turn state enterprises into competitive private businesses. Considering the reunification of Germany, political experts and business people alike debate whether the East Germans, having lived for more than a generation under a communist regime, will emerge psychically incapable of entrepreneurship or even incapable of the disciplined hard work and craftsmanship formerly supposed to be characteristic of German workers. Every day, reading the newspapers, we are reminded in one way or another how profoundly particular property regimes are expressions of particular political ideologies and how even “personality” itself is constructed in relation to a particular regime of ownership.

In the Anglo-American political and popular imaginations “property” has been a resonant word. To Englishmen, Magna Carta gave a precious right not to have one’s body or one’s land taken by the king without due process, a right that in the English-speaking world exfoliated into a more general right to be secure in one’s property. As many commentators have observed, the United States Constitution promises no explicit rights of personhood, yet these – including the right to privacy – have been constructed from provisions of the fourth, fifth, and fourteenth amendments that protect “persons” and “property” (bound together in the language of each amendment) from state searches and seizures without due process of law. The private ownership of land especially has seemed to hold out the hope of encouragement to honest labor, of high levels of productivity from which all can benefit, and – politically – of an independent and free republican citizenry. Oliver Goldsmith in his popular poem The Deserted Village, imagined this idyll of property in land in terms that would have made equal sense to Thomas Jefferson:

A time there was, ere England’s griefs began,

When every rood of ground maintained its man;

For him light labour spread her wholesome store,

Just gave what life required, but gave no more.

Yet, as we shall suggest, this idyll of personal independence sustained by private property obscures important aspects of what property is – indeed, of what personhood is.

While property in land is a crucial early form of property and a fundamental model for later conceptions of property, modern property also appears in much more variegated, intangible, and peculiar forms. The chapters in our collection consider a number of these newer forms of property constructed in the early modern period; for example, literary property, genetic property, and the franchise property of brokers of government debt obligations (that is, of dealers in financial instruments comparable with twentieth-century United States Treasury bills, notes, and bonds). In considering these newer forms of property, our chapters shed light both on the nature of modern intangible forms of property and on the processes of reification and legitimation that were required to produce them.

Our chapters explore the meaning of “property,” especially property in the early modern period, from a wide variety of disciplinary perspectives: political theory, law, sociology, history, economics, literature, and art history. Perhaps especially within the disciplines of political and legal theory, property is often considered in quite abstracted and generalized ways. Indeed, it is a normal aim of theory to propound general truths. Yet both the political theory and the legal theory of property have been significantly determined by the paradigm of property in land, unsurprisingly, since the older basis of political representation was property in land. Thus, it seems useful to attend more carefully to important alternative forms of property to test the explanatory power and satisfactoriness of those theories. The paradigm of property in land is powerfully linked with images of virtuous republican labor yielding crops that need to be secured from thieving wastrels. But suppose we abandon the paradigm of property in land to look instead at the property in persons sanctioned by early modern slave law? When an economic historian analyzes the debates over the Royal African Company, a private English monopoly in the African slave trade, then legitimizing rationales about the benignity of private ownership of property may look a bit different. Moreover, the resistance of some “things” – like slaves or literary property or genetic property – to being subjected to a private property regime of individual ownership is perhaps particularly well appreciated by specialists in other disciplines that study those “things.” We believe that theory can profit by being confronted with a more contextualized practice and with a more particularized account of important early modern forms of property in things other than land. It is worthwhile, too, to expose the more particular and disciplinarily based accounts of specific kinds of property to broadly ranging theoretical debates about ownership.

Unlike some considerations of private property, our collection is also concerned to understand the crucial role of state power in securing private ownership. How, for instance, do modern states come to believe that it is in the state’s interest to protect private rights to copyright or patent property? Although the due process rights of Magna Carta and the United States Constitution present themselves as rights against the state, state police powers guarantee the security of individual owners and can be invoked by owners to exclude “trespassers,” whether literal trespassers on land or less material trespassers on license privileges or copyrights. Property rights are, by definition, legitimated rights, yet again and again the use of state force on behalf of some owners to exclude other trespassers or to confer on some owners rights to the labor (or even the personhood) of others raises profound questions of contradictions between legitimacy and violence.

Property and political theory

Our collection begins with three chapters that explore important arguments in the political theory of property. Each of these chapters demonstrates different limitations to the ideas of “absolute ownership” and “absolute property” and each also considers crucial arguments legitimating private ownership. “Property,” after all, in civil society, cannot be simply what we are able to take and to keep by force, it must also be what we are “entitled” “legitimately” to possess. Ian Shapiro, in a very broadly ranging chapter considers the power of “the workmanship ideal,” that is, the principle that we are entitled to possess the fruits of our own labor. This ideal is importantly associated with John Locke, but, Shapiro demonstrates, variants of it appear in Marx and in the twentieth-century philosophers John Rawls and Ronald Dworkin. Attractive as this ideal is, it is also problematic. As Shapiro suggests, once theological beliefs about how different people come to have different productive capacities are abandoned, a new burden of “fairness” seems to be placed on society either to justify or to remedy the consequences of one person’s being born blind and mentally retarded and another’s being born sighted and mentally gifted. Furthermore, an individual’s productive capacity is not such an isolated and autonomous phenomenon as some economic and political theory has supposed. As twentieth-century divorce settlements giving stay-at-home wives percentages of their husbands’ professional earnings are intended to indicate, an individual’s productive capacity itself is the product of a complex social milieu.

Although the idea of private property suggests individual autonomy, property is necessarily relational, conceivable only in the context of communities of people; property rights are rights “against” other people, rights to exclude them from the use and enjoyment of the thing owned. Also invoking Locke, Richard Ashcraft sees him not as the founder of “possessive individualism” (as C. P. Macpherson does), but rather as retaining certain natural law ideas about individuals’ rights to subsistence. Private individuals own property, in this view, not absolutely, but subject to liens that can be claimed by their more necessitous neighbors if and when those neighbors are in danger of perishing. Even in the later eighteenth century when the newer views of Adam Smith that poverty was a sign of social pathology and misconduct began to prevail, Locke’s older views continued to find expression in contemporary debate, including in 1782 a call by William Ogilvie for the nationalization of land.

Both Shapiro’s ideas about the socialization of the capacity to produce and Ashcraft’s vivid sense of property as embedded in social relations find expression in Margaret R. Somers’s account of what “property in skill” meant to English artisans who were guild members. Amongst these artisans, Somers finds an older idea of property as social membership which, she argues, continued well into the nineteenth century to provide support for workers’ assertions of their rights against a newer idea of property as produced solely from autonomous individual labor. When an artisan possessed “the art and mystery” of a craft after an apprenticeship, what he possessed was not so much a technical skill as political membership in a group, membership on which his citizenship also depended. His rights as an Englishman were not so much rights against the state as rights to substantive justice (for example, in the public fixing of wages and prices) and rights to administrative participation.

Property and legal ideology

Next, three practitioners of critical legal history consider property as it has appeared to lawyers’ eyes. Agreeing with the political theorists that “it requires a heroic act of reification” to conceive of things as absolutely owned and that property relations are inevitably collaborative relations of mutual dependency, Robert W. Gordon explores some of the conflicting rationales that have been used to legitimate private ownership. Despite the continuing appeal of the idea of ownership as enabling personal autonomy and liberty, Gordon argues, we must also acknowledge that one person’s property rights are apt to impose burdens on another person, and so invariably restrict freedom for some while creating it for others. Rather than increasing security in the world, property rights “merely redistribute uncertainty away from the owner to those who will be subject to his rights’ exercise”: if my property rights in my farm allow me to build a dam on my brook, my neighbor’s alfalfa field may be flooded. In the eighteenth century, as property in contracts (mortgages, debt-instruments, stock) grew, the creditor’s property in his debt also increasingly seemed to give him a disturbing sort of property in his debtors. Thus, looking at the relation of English merchant bankers and Virginia tobacco-growers who were their debtors, Thomas Jefferson observed bitterly that these debts “had become hereditary from father to son, for many generations, so that the planters were a species of property annexed to certain mercantile houses in England.”

Gordon considers a wide variety of legal property relations, while David Sugarman and Ronnie Warrington concentrate on one very important but little studied kind of legal property: the equity of redemption. (An equity of redemption is the legal interest a mortgagor of real property has in his mortgaged property even after he ceases payments on his mortgage.) The equity of redemption protects the current owner against foreclosure by his mortgage creditor despite the failure of the current owner to live up to his side of the contractual bargain. Understanding even the technicalities of classical real property law as a “way of social imagining” and as “a potent and institutionalized privileged way in which society presents the world to itself,” Sugarman reveals how the judges’ treatment of the equity of redemption supported the interests of landowners against those of mortgage creditors and how, especially after the threats of instability posed by the stock speculation of the South Sea Bubble, the judiciary conceived of this support of the landed interests as a way of promoting the continued possession of land “by its rightful owners.” Consequently, because land was the basis of political power, the judiciary thought of itself as promoting continuity of governance, even ultimately the stability of the nation itself. Despite the developing rhetoric about contract rights as themselves important property and despite the wide variety of newly important contract property that Gordon’s chapter surveys, Sugarman and Warrington strikingly observe how willingly the judiciary turned deaf ears to the contract claims of mortgagors in conflict with their landed debtors. Not until the late nineteenth century, when the landed also usually had other forms of capital, when the value of land fell, and when the electoral franchise had been dissociated from the ownership of land, did these lenders’ pleas for contract enforcement against the landed meet with much judicial sympathy.

Historians have generally neglected the study of seventeenth- and eighteenth-century private law, in part because it has seemed that until the high-profile legislative battles of the nineteenth century, not much happened with the common law. Both the chapter by Sugarman and Warrington and the next essay by David Lieberman help to remedy this neglect. Lieberman turns his attention to commercial law and the judicial interventions of Lord Mansfield, which were perceived by many contemporaries to be a crucial form of legal modernization. Lieberman’s analysis of Mansfield’s position raises the question of how long the more conservative land law could remain insulated from the different, more “modern” approach to commercial law in a world in which, as Adam Smith proclaimed, “every man … lives by exchanging, or becomes in some measure a merchant, and the society itself grows to be what is properly a commercial society.” For no matter how brilliantly Mansfield strove to create a system of commercial law that was simple, rational, and “certain,” as Gordon’s chapter so eloquently suggests, the ownership of commercial property itself proved to be “only a ticket of entry to a condition of vulnerability.”

Property and the family

Until quite recently, when considering questions of owners and ownership, political and legal theory tended to be gender-blind. Yet, in the early modern period, as liberal political philosophies figuring citizens as autonomous private owners were developed, the sorts of ownership that were imagined typically conferred citizenship on males, not on females. Quite striking tensions emerged between how property was understood in the context of the state and how it was understood in the context of the family. In a provocative chapter on Montesquieu and Diderot, Carol Blum reminds us of the eighteenth-century French fears of depopulation, then proceeds to argue that these philosophes had a variant on the workmanship ideal: as men’s ownership of land is legitimated by men’s labor on the land, so a man’s possession of a woman is legitimated by his fertilization of her. Barbara B. Diefendorf, focusing on French practice rather than on theory, investigates the division of property within families in Paris, where customary law prevailed, and Dauphiné, where civil law governed. Her chapter complicates the too often heard assertion that women were the property of men by displaying the range of property rights belonging to daughters, wives, and widows. Despite the assertions of traditional patriarchal ideology that women were not competent owners, Diefendorf is particularly struck by evidence she uncovers of wives’ and, even more, of widows’ understanding their husbands’ business affairs and being entrusted with management and administration of family property.

Continental civil law systems gave daughters and younger sons forced share rights to family property (the légitime), rights children did not enjoy under the English common law system which Susan Staves examines in the final chapter in this section. Individual upper-class English families, nevertheless, often conferred on children some rights to shares by means of parents’ marriage settlements. How the courts dealt with disputes over such rights reveals, among other things, how forcefully the English state was willing to project what it saw as its own interests (for example, disadvantaging Roman Catholics and Jews) in the “private” sphere of the family. Staves’s chapter also considers how weakly the “legitimate,” supposedly “natural” family, the family often deferred to by the state as pre-existing the state and immune from state scrutiny, could correspond to the biological family, which was apt to include a variety of persons the state was content to disadvantage, not only Roman Catholics, Jews, or aliens, but also bastards.

Property and the construction of a self

That different entitlements to property or the ownership of different kinds of property are apt to produce different sorts of people is a familiar idea: the confident, perhaps presuming heir of primogeniture in contrast to the worried, perhaps envious, younger brother; or the independent-minded, public-spirited landowner in contrast to the servile, self-interested city lawyer or stockbroker. Early modern commentators were exquisitely conscious not only of the emergence of new forms of property like stocks or government paper, but also of new sorts of persons, perhaps most notably the new men of commerce and money. The very characterization of “the landed interest” itself seems to have arisen in the earliest years of the eighteenth century, by way of contrast with the interests of the new owners of the government paper created by the Bank of England and of those who made markets in this paper. Traditionally, the influential periodical produced by Joseph Addison and Richard Steele, the Spectator, has been seen as one of the earliest expressions of a new commercial ideology, offering explicit propaganda defending modern commercial men like their fictional hero Sir Andrew Freeport, and, ever so gently, poking fun at the old-fashioned, country-squire values of “Sir Roger de Coverley,” a lovable enough character, but one whose day seems to have passed. Lawrence E. Klein, however, argues that what the Spectator actually aimed at, and accomplished, was the overcoming of this contrast between the landed man and the commercial man, inventing a new ideal of politeness that could include both. Fundamental to the Spectator’s resistance to the dichotomy was its realization that “commerce was not a sector of the economy, but a fundamental form of the entire economy” and that land itself was not so insulated from commerce as the mythology of the landed interest pretended. Emerging notions of self thus could be released from dependence on the kind of property that materially supported a particular self, indeed, reference to the material bases of selfhood became a vulgarism in polite society. Instead, the polite self could be imagined as freely constructed, perhaps in accordance with the directions of the Spectator, and, potentially at least, universally available. The ideals of politeness Klein sees the Spectator developing, in fact, aim to repress partiality and difference with a genuinely new construction of self; they are not simply intended to force commercial men to imitate the landed elites, nor are they simply a way of domesticating a traditional elite to the more pacific norms of commercial men.

David Solkin’s art historical essay presents a related contrast between images of personalities based on landed property and personalities created by commerce, through readings of two paintings: Closterman’s picture of the Earl of Shaftesbury and his brother, as contrasted to Joseph Wright’s picture of a group of much more modest Englishmen, women, and children clustered around a scientific demonstration in The Air Pump. In Wright’s emphatically modern picture, Solkin argues, we see not classicized transhistorical types, but a very particular private set of people, in a very particularized historical moment. They visibly inhabit a world so subject to division of labor and individual difference that acts of imagination are required to produce empathy. Wright’s image of the cockatoo apparently on the verge of expiring in the vacuum jar, its suffering the occasion of scientific enlightenment and entertainment, seems to make problematic the progression from industry to knowledge, and, even as it honors the refinement visible in the polished surfaces of the painting, to raise the question of whether improvements may also be corruptions.

Proceeding further into the dark places of personality hinted at by Wright’s chiaroscuro, Patrick Coleman offers a subtle analysis of Rousseau’s insights into the relation of property and personality. Coleman’s readings of the Discourse on Political Economy and Emile develop some of the paradoxes of property earlier identified by Robert W. Gordon. In Rousseau’s account of the development of civil society, the division of land implies mutual dependency, yet the individual’s experience of the regime of private property for Rousseau arouses con...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• LIST OF TABLES
• LIST OF PLATES
• PREFACE
• NOTES ON CONTRIBUTORS
• 1 Introduction
• Part I Property and political theory
• Part II  Property and legal ideology
• Part III Property and the family
• Part IV Property and the construction of a self
• Part V  Literary property
• Part VI Reification: the invention and institution of special forms of property
• Part VII The property of empire
• INDEX