American Pentimento by Patricia Seed


One of the great frustrations of my life is trying to convince people the history of land use planning is a topic of great interest. I’m told I make it sound wilfully boring; that no one wants to hear about Robert Hooke’s regulatory reforms or the origins of the Plumbing Code. By contrast, it’s comparatively easy to talk about current politics, and the more contemporary cycles of planning law, property development, electoral cycles, economic forecasts and social in/justice. These can be discussed using recent terms and ideas that are readily accessible and have the ability to rouse passions based on immediate personal experience. Good examples include Sydney’s lock out laws, Westconnex or the sale of public housing.

The problem with this penchant for the contemporary is that it tends to present us with both a contemporary problem and a contemporary way of thinking about it. Consider this in light of Audre Lorde’s line “the master’s tools will not dismantle the master’s house.” This suggests that if the only context and language you have to critique contemporary land use is the context and language that made the problem, you will struggle to find a viable solution. Instead, you’ll end up producing an opposition, rather than an alternative.

In this respect, I’ve been considering Buckminster Fuller’s belief that “You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.” This is easier said than done if the only frame of reference you have is the existing reality.

Talking about this with Tess Lea a few weeks back, she lent me Patricia Seed’s book American Pentimento, which is a comparison of the legal frameworks involved in British and Spanish conquest of the Americas; exactly what I’m assured is inherently dull.

Mostly what Seed looks at is the different legislative attitudes taken to land use during the early phases of European empire. She draws a distinction; the Spanish generally declared land in the name of the Crown, and tended to leave conquered people where they were on the provision they pay homage to the Crown. They tended to legislate against European squatters or individual land owners as this was seen as disrupting the control of wealth – particularly mineral wealth – by the Crown. Whilst this legitimised through the ideology of a benevolent monarchy, it was basically a way of preventing the mercantile class from seizing too much power. Had the various merchants active in the Americas been able to ‘buy’ or seize land in a way recognised by Spanish law, they would have had a legal way to gain the kind of wealth which made them a threat to the monarchy.

The English had the exact opposite approach, having beheaded Charles I for asserting a very similar line of thought. Their argument was that private property ownership was a good thing because it diffused power, and that this diffused power over land ownership encouraged people to make their land as productive as possible, adding both to their own wealth and the collective wealth of the Empire.

This is still the logic involved in much urban renewal and public housing selloffs today; the logic runs that social housing adds no economically productive value to the public coffers, major development generates jobs and growth, and from that jobs and growth we can build more social houses somewhere else. It’s a logic that only works if you think of things in a sort of credit/debit logic, in which the negative social impacts of dislocation can be offset by using development contributions to build social housing in less economically productive areas – such as outer suburbs.

Which is exactly how the English were thinking of it after the death of Charles I. The value of land was based on its economic productivity, not on moral or historical possession. To accept the latter option was to legitimise monarchical rule, which is what the English were trying to avoid. In American Pentimento, Seed traces the formation of this logic into property law.  She starts with the concept of ‘Wasteland’ – a term adopted shortly after the Norman conquest of Britain in 1066 “signifying uninhabited or relatively under inhabited ground.”  ‘Wasteland’ gave people of a particular class the legal right to fence and farm land that no one else was ostensibly using. It sat in counterpoint to the concept of the ‘Commons,’ which was land for everyone to use. At this point ‘waste’ didn’t mean rubbish. Instead, the term was used to designated land which could be ‘improved’, usually by the fencing of semi-wild animals to make them easier to hunt and domesticate.

Seed tracks the change through a couple of key texts. The first is Sir Thomas More’s Utopia (1516), which drew from Amerigo Vespucci’s (from whom we draw the word ‘America’) writings about his exploration of Brazil. In More’s book his ‘Utopians’ find a country populated by “a people which does not use its soil but keeps it idle and waste.’ In More’s logic, those who seek to use the land have the moral right to take it and, in doing so, make it productive for the public good, thus allowing them to build a utopia.

This connects through to Seed’s second source, Justice William Blackstone’s Commentaries on the Laws of England, a four volume set of writings on English common law. Blackstone is best known as the guy who set up the idea of ‘terra nullius’. There’s an oft site section in the introduction where he writes:

For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.

Or in effect, if an Englishman arrives in a country and can’t see people planting things on it, tilling the soil, or enclosing the fields, English laws apply. This ties into book two of the Commentaries, which is dedicated entirely to the concept of ownership, particularly property ownership:

Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it: for then it becomes, naturally speaking, public juris once more, and is liable to be again appropriated by the next occupant.

Thus, within the Common Law rule books carried by colonial administrators, it was a law universally acknowledged, that land that isn’t being used can be claimed by anyone willing to use it.

As far as I can tell, these legal definitions were used in Britain to legitimise the Enclosure Movement, in which traditional Common land was declared ‘waste’ and could, by Act of Parliament, be fenced off and placed in private ownership. As Seed points out, when British policy and law makers moved into newly conquered territory they took Blackstone’s Commentaries with them as the definitive interpretation of English common law and began following the same logic. She writes:

An eminent legal scholar, William Blackstone, in 1765 transformed the traditional English understanding of waste into a colonial legal fiction that such land was unowned. He called this fiction terra nullius (literally, land of no one, land belonging to no one). However, Blackstone falsely implied that this cultural concept had a latin origin. 

Blackstone actually took a late Roman law regarding hunting animals, which were not viewed as private property, and used it as a ‘source’ to justify the English concept that relative underpopulation justified seizing land. Terra nullius exaggerated the English proclivity to interpret unbounded, non-plowed and sparsely settled areas as ‘waste’ or ‘common’ land by proclaiming that such land belonged to no one. 

She notes the appearance of this sort of logic in things like the South Australian Constitution Act of 1834 and India’s Waste Lands Rule of 1836. You can see the same logic – with the use of the term ‘wasteland’ in Bourke’s Proclamation, which I wrote about here.

And you can also see it in the 1830 formation of the Australian Agricultural Company “for the ‘cultivation and improvement of Waste Lands in the Colony of New South Wales.’

This latter example has its direct antecedents today. When we look at State owned urban development, public private partnerships and major redevelopment of city areas, they operate on exactly the same logic, and gain their moral legitimacy in the same way: that right to ownership is connected to productivity, and that non-productive use legitimises dispossession. It’s a logic that, paradoxically, undermines traditional notions of Common lands by asserting common benefit is generated by private ownership. Ostensibly, we all gain from major development through things like development contributions, brought about by the wealth created by individual investors.

When we consider the negative impact of this kind of ‘value add’ on Aboriginal Australia we begin to see the faults quite quickly, but this isn’t unique to the Australian situation. As Seed points out, it predates the British incursion into Australia, hinging on a legal interpretation that ties value to returns on private investment in land. But, as she also points out, there is still a pentimento evident; a term she borrows from the art world, in which the image of an earlier picture remains beneath what’s currently visible.  Her point, as I read it, isn’t that we can return to those earlier images of a pre-colonial or pre-capital world, but that we can still see, and can still draw from, radically different systems of valuing, and governing, land use – assuming we can see through the layers we’ve painted on top of them.