Preserving or Policing Commons?

by Laurence Ware

The Commons Preservation Society (CPS) is considered to be the oldest of the UK national “amenity” bodies—voluntary organisations set up for the purpose of preserving the art and architecture of the past. However, it was founded in the 1860s as an organised pressure group with the ambition of protecting the parklands and heaths that were at risk of a new wave of enclosure associated with rapid urbanisation. The group were hugely successful, campaigning effectively for the preservation of significant portions of the English countryside. Called “commons,” these newly protected sites—including Hampstead Heath and Epping Forest—became emblematic of a wider movement to recognise open spaces as a critical part of national heritage. Yet situating the Society in terms of longer trajectories of radical politics is complicated: On the one hand, the CPS played an important role in translating the imperative to protect common resources into legal mechanisms and claims. On the other, their activities were grounded in a romantic vision of nature that can be seen to support bourgeois leisure ideals, and to strengthen calls for new kinds of spatial policing.

The CPS were certainly not the first to organise in the name of the English commons. The Chartist movement, which had been active between the 1830s and 1850s, had mobilised the term in its occupation of public spaces such as London’s Hyde Park, calling for rights for free assembly and rejecting the policing of public space. This gave rise to new concepts of “public space” which would become central to democratic political thought, even after the Chartist movement faded out. Before this time, Leveller and Digger movements had also claimed “commons” when the manorial system of land management, dominant since Domesday, were being legally dismantled throughout the sixteenth and seventeenth centuries. This process of enclosure continued into the eighteenth and nineteenth centuries, although in the time of the CPS social movements were no longer responding primarily to the conversion of agrarian land into private property. Instead the principle concern was the open land on the fringes of manor estates, the former “wastes” or “commons,” which were being sold off for large urban building projects.

The tensions surrounding the commons and its relation to liberty were felt especially in London. In 1864 when Earl Spencer proposed a bill for the enclosure of Wimbledon Common, Frederick Doulton, the MP for Lambeth, was able to instigate a House of Commons select committee to interrogate the bill and to re-examine the state of open spaces in London. This select committee produced a report in 1865 on London’s commons calling for an immediate end to enclosure; the recognition of the rights of the “public” over the commons; and the imposition of regulations for their better management. The CPS was founded the same year with the purpose of giving effect to the select committee’s recommendations.

George Shaw-Lefevre, the first Baron Eversley, was a key figure in the new Society, and it was in his chambers in the Inner Temple on 19 July 1865 that the Society was inaugurated. Entering Parliament in 1863, Eversley had become a prominent member of a radical group of Liberal MPs intent on reshaping the party for social reform. Leading up to the repeal of the Corn Laws in 1846, Parliament had been dominated by debates between well-represented landowners on the one hand, struggling to keep existing limitations on corn imports to ensure the premium value of their crops, and new industrialists on the other, keen to open up the markets and force down the cost of labour. Eversley and his allies, including J.S. Mill, Lord Mount Temple, Professor Huxley and Andrew Johnston, developed a “third-way” argument within this debate, premised in ideas of protecting a public good. This was a relatively new idea in Parliament. It called for the creation of collective forms of ownership, through which recreational land and cultural heritage could be protected from excessive development. However, whilst representing clear opposition to the pursuit of individual gain over all over social aspirations, this public good was not really a rejection of the basic principles of private property ownership. The “commons” protected by the CPS were understood as national heritage and a poetic source of inspiration, rather than a radically different economic model.

Parliament’s adoption of Eversley’s report did, however, lead to the passing of the Metropolitan Commons Act of 1866, which made enclosure of the London commons practically impossible. However it also made Lords of Manors quickly rush ahead to enclose, beginning with Hampstead Heath. It was at this moment that, under Eversley’s supervision, the first solicitor for the CPS, Philip Lawrence, began to collect evidence of the continued existence of common rights on the Heath, since “time immemorial”. The battle for Hampstead Heath was concluded successfully in 1868, and was followed by protracted campaigns for commons, and later forests, including Wimbledon (1865-70), Wandsworth (1870-71), Plumstead (1866-71), Tooting Graveney (1868-71), Epping Forest (1865-71), Ashdown (1876-82) and Berkhamsted (1866-70). 

This sequence of campaigns reflected the emergence of the CPS as a growing and increasingly formidable force of influence. It also reflected the solidification of a protocol for contesting any threatened park or heath that could be very rapidly rolled out. In each case the central CPS working-group would bring a planned enclosure to local public attention, raising the issue in national papers and often working with local associations or individuals to build interest for a local CPS group. Then, the society’s historians and lawyers would gather evidence of the continual practice of commoners’ rights on the site in question through history, and into the present day. A local resident with sufficient influence and funds—often a personal friend of Eversley—would then be prevailed upon to bring a legal challenge against the Lord of the Manor, while public events were organised to rally the newly christened “commoners.”

In the way it connected influential people to achieve its goals the CPS was characterised by both conservative and radical progressive tendencies. The grounds of the Society’s appeals were based in ideas of historical heritage: that is, the idea that particular places ought to be protected because they had been used as commons “since time immemorial.” The Society’s activities were largely dominated by the interventions of already powerful white men, and mobilised nostalgic visions of the pre-industrial English countryside to gain wider support. On the other hand, its models for action were inspired by experiments in collective management abroad, and by progressive economic critiques. For example, many CPS proponents were influenced by social thinkers such as John Ruskin and William Morris.

This tension is one reason that it is very difficult to describe the CPS in terms of its class relationships. Thus some have portrayed the CPS as a moralising force of the bourgeoisie, acting to “improve” the working class, whilst ensuring their continued access to recreational spaces. Thus, in writing of the resistance to a proposed park preservation scheme on Mousehole Heath in the 1850s, Macmaster indicts the Parliament-led commons preservation scheme for its definition and suppression of “rough” or “unseemly” uses, as well as for its exclusion of long-standing working-class movements from their spatial control of the suburbs. Others suggest that this reading downplays the radical reading of common and customary rights that drove the activities of the CPS—for example, a dramatic fence-breaking action on Berkhamstead Common in 1866—and their role in stimulating popular dissent. In this sense it is also important to note the role of the CPS in facilitating new coalitions between groups, and in many ways acting the catalyst for the birth of new prototypes of early twentieth-century labour politics. 

This political ambiguity has much to do the Society’s uncertain relationship to private property. The tactics employed by the CPS made use of loop-holes within existing enclosure legislation to remove the grounds upon which wealthy land-owners could claim rights to fence in and sell off their land. The dispute focused on the Statute of Merton, a legal instrument created as a form of compromise between Henry III and the barons of England in 1235. This statute, which formed the basis for English common law, was initially structured to allow a Lord of the Manor to enclose common lands, provided that it could be evidenced that sufficient pasture remained for tenants. It was also the legal foundation upon which the aristocracy of the sixteenth and seventeenth centuries asserted their right to enclose. However, Lord Eversley’s allies were well-versed in legal intricacies, and the entire leverage of their campaigns was based on a sub-clause of the Statute, which stated that Lords of Manors could enclose their manors only provided it should appear on complaint of free tenants that a sufficiency of common remained to satisfy their rights. Mining local historical sources and local residents’ memories, the CPS constructed their cases to show that this sufficiency could not be evidenced.

The strategic redeployment of the Statute of Merton this way was heavily influenced by ideas of property and rights which had been developing through the seventeenth and eighteenth centuries. Before the sixteenth century, property had been imagined as a bundle of overlapping and often non-exclusive rights and obligations, linked with the organisation of manor estates as operational communities. The concept was transformed only when John Locke and his disciples framed property as a “bounded thing.” Locke’s Second Treatise on Government, published in 1681, set property for the first time in relation to the economy, making it his key principle for defining citizens’ rights and obligations. Locke’s argument was that the boundaries of ownership transformed labour by tying the fruits of labour to the land’s owner. This, he claimed, introduced a motive for making the land work better, thus resulting in a better yield for everyone. In this move “commons” becomes reframed as a state of idle disuse. Commoners are idle, for Locke, whereas property owners are productive citizens.

Individual property, henceforth, was to be understood as a natural right that arises when individuals create value by mixing their labour with the land. This is a right which the market socialises when each individual gets back the value he or she created by exchanging it against an equivalent value created by another. However, individuals who fail to produce value have no claim to property. For example, the dispossession of indigenous populations in North America by “productive” colonists was legitimised on the basis that they were allowing fertile land to go to waste. The land was not enclosed, therefore it was “empty,” and ripe for colonisation. 

For members of the CPS, these underlying principles of an adolescent liberalism were not exactly in question. The notion of communal, or public, ownership was their solution to the excesses of personal acquisition and environmental degradation which were becoming more apparent. The well-known social historian E.P. Thompson makes a similar point when he argues for the “order in this disorder” of earlier anti-enclosure movements which had seemed to reject claims to property. He finds that the traditional rights and legalistic rituals they resorted to, such as pledges of loyalty to the crown and acts of “possessioning” land, were often themselves anchored in the vocabulary of property, rather than an affront to it. The effects of liberal industrialisation were being rejected, in such cases, rather than its founding principles. In the case of the Open Spaces movement, the concept of public ownership they championed depends crucially on developing ideas of private ownership. The “commons” advocated is not a rejection of private property, but an attempt to articulate communal interests into the law. 

Whilst lastingly affecting the landscape of the English countryside, and rights of access to it, the CPS was thus most overwhelmingly effective in the construction of the idea of public property, and in their construction of legal mechanisms to support its legislation. In 1895 key members of the CPS would go on to set up the National Trust as a body to support the management of properties for the “common good.” But did the ongoing forms of management and regulation share the same defiance in the face of enclosure as the initial struggles? Are struggles for the common management of land for subsistence living equivalent to the protection of parks from investors?

Today, notions of “commons” take on new currency as forms of enclosure associated with corporate land-grabbing and neoliberal privatisation exert increasing pressure on the possibilities for rural and collective life. These commons are not the same as the commons claimed by the CPS, which in turn are not the same as the commons claimed by the rural struggles of the seventeenth and eighteenth centuries. On the other hand, rather than distance or disconnect these struggles, reflecting on the specific claims and legal engagements of movement like the CPS can yield vital insight into both the opportunities and the pitfalls that are tied to the staging of commons claims. Movements like the CPS were instrumental in establishing legal mechanisms for dissent which had a lasting effect on the ways that public space and the public realm continued to be articulated in political terms, in the UK and further afield. The mechanisms and practices associated with this production and its pre-history have also supported other, more “radical” spatial claims, including those of the working-class movements of the early nineteenth century. Claiming commons within this context does not simply mean citing a long list of prior movements that can be associated with such radical claims. It also means revisiting such movements with attention to the voices and presences excluded by such actions, and to their disconnections as well as their connections. We need to be inspired by innovative forms of social organising that have intervened into the law and transformed processes of enclosure. However, within the long histories and complex geographies of claiming commons it is clear that more than one vision of common life is at stake. 

Naomi Millner is a political and cultural geographer and based at Bristol University who researches environmental and social movements of the past and present, in the UK and in Central America.

The Society’s activities were largely dominated by the interventions of already powerful white men, and mobilised nostalgic visions of the pre-industrial English countryside to gain wider support.


Info & Credits

Published in STIR magazine no.09, Spring 2015

Written by Naomi Millner

Illustration by Laurence Ware