Tag Archives: History

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.


The King Arthur Trilogy by Rosemary Sutcliff

The first book I read last year was Rosemary Sutcliff’s Sword at Sunset. From there, I went through the full Eagle of the Ninth and ended with the King Arthur Trilogy. I read a lot of great books last year, and books aimed for my own age group, but rediscovering Sutcliff’s historical fiction was a bit of a highlight.

In her King Arthur Trilogy, written to introduce children to the Arthur myth, she writes:

Some time early in the fifth century AD […] the last Roman legions were withdrawn from Britain to defend Rome itself, and the British were left to hold off the invading Saxons as best they could. In the end, they failed, but they put up such a fight it took the Saxons around two hundred and fifty years to complete their occupation; and they never did take over all of the Western country. But none the less, the withdrawal of Rome was the beginning of what we call the ‘Dark Ages’…

The Eagle of the Ninth trilogy opens with this withdrawal, with the last legions shipping out from Rutupiae, their fort on the coast of Kent. In their wake came the invading Saxons, including a particular tribe called the Angles; now better known as the English.

At that point, the country was still occupied largely by Celts; descendents of the Iceni, Brigantes, Trinovantes and Catuvellauni, who had been Romanised for the better part of five hundred years. They fought the invaders tooth and nail. This is where the Arthur legend comes from; a Romanised Welsh king fighting to keep the English out of modern day England.

For a children’s author, Sutcliff does a remarkable job of unravelling the inherent multiculturalism of British and English identity. I was reading her books in Suffolk, one of the first place the Angles invaded, in a house next to a former Iceni hill fort. 1500 years earlier it would have been the front line of Saxon/Celt conflict.

Iceni Hill Fort with Hortse
                     The view from an Iceni hill fort in Suffolk.

Around the same time former Prime Minister Tony Abbott had declared “Aboriginal people have much to celebrate in this country’s British Heritage.” Asides from the obvious dubiousness of this statement, there’s an underpinning question as to what ‘Heritage’ Australia has actually inherited Britain. In London I went to a conference in which the British were discussing the various class and regional distinctions of their accents. Another Australian noted they had trouble understanding the divisions because “You all sound British to me.”

Certainly, it’s much harder in Australia to pick the distinctions between the Welsh, English, Scottish, Irish, Cornish and so on. Most of us are an amalgamation of all of the above, and various other ethnicities. Yet our debates on multiculturalism or the legacy of ‘White Australia’ still tend to assume a dominant, common racial identity. Reading through Sutcliff’s various children’s books, it becomes obvious that most of our ancestors spent longer killing each other than sharing any common heritage. I thought it was an interesting lesson to take from a children’s book.


Would My Mother Like This Book?

Possibly. The font is a good size, she does like Rosemary Sutcliff, it’s good holiday reading. All the main characters are mail though.


Memoirs of Hadrian by Marguerite Yourcenar

Last year my esteemed publisher, John Hunter, recommended Marguerite Yourcenar’s Memoirs of Hadrian. In return, I’ve so far failed to produce a second book and most of my writing is now absorbed into the thrills and spills of local government.

Hadrian was, of course, one of the great emperors of Ancient Rome. Today’s he’s most famous for building a wall, but Edward Gibbon wrote of him:

Under Hadrian’s reign the empire flourished in peace and prosperity. He encouraged the arts, reformed the laws, asserted military discipline, and visited all his provinces in person. His vast and active genius was equally suited to the most enlarged views, and the minute details of civil policy.

He was a brilliant policy wonk, dedicated to urban planning, administration, and good governance. Indeed, he was most renowned as the first Roman emperor who stopped invading places; who actually withdrew from the territories conquered by his predecessor, Trajan, to focus on better administration.

To that end, he’s a surprisingly good hero for lowly bureaucrats such as myself. Hadrian wrote an actual autobiography, which has unfortunately been lost. Yourcenar’s book aims to replace it; written as if on his death bed to his adopted grandson Marcus Aurelius, he explains:

Laws change more slowly than custom, and though dangerous when they fall behind the times are more dangerous still when they presume to anticipate custom.

It then takes what could be considered a quasi-feminist turn:

The condition of women is fixed by strange customs: they are at one and the same time subjected and protected, weak and powerful, too much despised and too much respected. In this chaos of contradictory usage, the practises of society are superposed upon the facts of nature, but it is not easy to distinguish between the two.

It’s almost a reiteration of Arendt’s claim that “thought and reality have parted company,” and it drives the book. In Yourcenar’s rendition, Hadrian spends most of his time trying to impose something beautiful, in the form of urban design, monuments and social policy, on something illogical, namely the Roman Empire, gradually wearing himself out in battles with Christian extremists, a Senate that hates him, and the death of his boyfriend.


Would My Mother Like This Book?

No. It’s about a dead old white owning class man. Also, the font is very small.

Between Past and Future by Hannah Arendt

I read Arendt’s Eichmann in Jerusalem right before I stared working in the fast paced world of local government and her analysis of institutionalization was pretty terrifying. There’s a great interview with her here, opening with a particularly stupid question about whether it’s possible to be both a woman and a philosopher.

In Between Past and Future, written in 1961,  Arendt cheefully announces “thought and reality have parted company”, before beginning a history of Western thought from the Romans through to the Nazis. Of the Romans, she writes:

Before the Romans such a thing as tradition was unknown; with them it became and after them it remained the guiding thread through the past and the chain to which each new generation knowingly or unknowingly was bound to its understanding of the world and its own experience.

From there, she makes the argument that people’s concept of who they are has increasingly come from where they think they came from, rather than where they are now, leading to a situation whereby the current is overwhelmed by fairly dubious ideas about origins, tradition and authenticity.

She puts this down to Rome’s obsession with its origins, writing:

…the most deeply Roman divinities were Janus, the god of beginning, with whom, as it were, we still begin our year [i.e January], and Minerva, the goddess of remembrance.

Lately I’ve been reading a few Australian histories and, arguably, the same argument makes sense of some of the more comedic moments of the Abbott legacy. You could probably make a case that the myth of Australian origins tended to eclipse a more pragmatic policy framework – for example, having a Minister dedicated to ANZAC, but no Minister for Science, climate change, cities or creative industries.


Would My Mother Like This Book?

She’d probably agree with it ideologically, but the font is pretty small and it’s pretty grim, and there’s not much on either dogs or gardening in it.


SPQR: A History of Ancient Rome by Mary Beard

Last year I set myself two goals for the year.

  1. To only read books by women, more on which here.
  2. To blog about each one.

The first was a great success, and the latter an abysmal failure.

One of the unexpected oddities of my year of gendered reading was a surprisingly large volume of histories of Ancient Rome, ending when I got Mary Beard’s SPQR: A History of Ancient Rome for Christmas.

Beard herself seems quite the character. She has her own documentary, which opens with her pedaling down the Appian Way.

Her history starts with Romulus, Remus and their fateful encounter with a lactating she-wolf, and ends with the emperor Caracalla giving citizenship to everyone within the empire. It’s thematic, rather than narrative, and focuses on legacy rather than historical detail. As she writes:

To ignore the Romans is not just to turn a blind eye to the distant past. Rome still helps us to define the way we understand our world and think about ourselves, from high theory to low comedy. After 2000 years, it continues to underpin Western culture and politics, what we write and how we see the world and our place in it.

I’ve been listening to the marathon narrative of the History of Rome podcast, and against which SPQR provided a context: the ‘What’ to it’s ‘When’. As Beard concludes:

…I am more and more convinced that we have an enormous amount to learn – as much about ourselves as about the past – by engaging with the history of the Romans, their poetry and pose, their controversies and their arguments.

This is an apt summary of the other books on Roman history I read last year, which circled less around Rome’s history and more around its trace. I thought I’d explore this through another sporadic foray into blogging; starting with Charlotte Higgin’s Under Another Sky, Hannah Arendt’s Between Past and Future, Marguerite Yourcenar’s Memoirs of Hadrian, then wandering back to the start of last year, with Rosemary Sutcliff’s Sword at Sunset and Marion Zimmer Bradley’s Mists of Avalon.

You can read Mary Beard’s blog here or buy her book here.


Would My Mother Enjoy This Book?

No, it’s a bit too long, but she would enjoy the TV show.

‘The Victorian City’ by Judith Flanders, ‘Georgian London’ by Lucy Inglis and ‘Culture Class’ by Martha Rosler

In my ongoing quest to understand the origins of planning law, I’ve been reading a lot of histories of London. That, after all, is where most of our town planning systems come from. Particularly I’ve just finished Lucy Inglis’ Georgian London: Into the Streets and Judith Flanders’ The Victorian City: Every Day Life In Dickens’ London.

Both of them focus a lot on poo.

For example, Inglis starts with an analysis of the building code designed by Christopher Wren in 1667, shortly after he was appointed King’s Surveyor of Works.But then she grounds things in the more immediate and brutally personal:

On a Saturday in 1762, in a run-down alley near Tothill Fields, Mary Flarty left her toddler Jerry with five-year-old Anne Ellison. They alley had no traffic, and seemed safe for young children. Jerry tried to use the special low seat for youngsters in the communal privy, and fell into the cesspit. Although the community rallied immediately to retrieve the boy, Jerry was already dead.

London grew massively during the 18th century and, as it did so, the volume of effluent being produced began to seep into the water table. In 1831, it infected the water table with a cholera, killing 52,000 people. In London, the City declared ‘a Day of Fasting and Humiliation’ in the belief it was a curse from God.

Incidentally, Inglis has her own adorable Youtube channel here where she films things with her phone and talks about them:

Similarly, Judith Flanders devotes an entire chapter to waste water, giving a more graphic depiction of the source of the cholera outbreak:

By the late 1840s, there were so many cesspools under even the most expensive housing in the West End, that the walls between them frequently collapsed, and so fashionable London was perched on top of what one sanitary reformer called not cesspools but ‘cess-lakes’.

By 1858, there was so much shit in the Thames that the summer became known as The Great Stench. The smell was so bad it disrupted Parliament. The Times reported, “Parliament was all but compelled to legislate upon the great London nuisance by the force of sheer stench.” Disraeli passed a bill to establish a Metropolitan Board of Works and install sewerage systems across the city.

We live in far less dangerous, far more resilient cities today. Much of that resilience emerged because the consequences of poor policy have been so dire. One of the other books I’ve been dipping in and out of is Martha Rosler’s Culture Class, in which she cites Richard Florida et al as proof that “empirical inadequacy and faulty predictive power are no barriers to success.” Looking at contemporary urban studies, it’s interesting to contemplate whether the increased resilience of our cities has made them less responsive; allowing poor policies to succeed by virtue of not having produced disasters big enough to disprove them.

Note: If you don’t think that’s an interesting point of contemplation, you can watch Rosler’s ironic Semiotics of the Kitchen here:

Would My Mother Enjoy These Books:

The Victorian City by Judith Flanders: She would read and enjoy parts of it, but it is quite long and the font is quite small.

Georgian London by Lucy Inglis: She would read ten pages and then give it to me for Christmas

Culture Class by Martha Rosler: She would read a few pages and then ring me up to tell me about art and Feminism in the Seventies. The conversation would quickly turn to focus on teaching in the Eighties.