Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
0Activity
0 of .
Results for:
No results containing your search query
P. 1
SSRN-id470983.pdf

SSRN-id470983.pdf

Ratings: (0)|Views: 1|Likes:
Published by Limonaie

More info:

Published by: Limonaie on Dec 24, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

12/24/2012

pdf

text

original

 
The Second Enclosure MovementAnd the Construction of the Public DomainJames Boyle
This paper can be downloaded without charge from theSocial Science Research Network Electronic Paper Collection:http://ssrn.com/abstract=470983
D
UKE
L
AW
S
CHOOL
Duke Law School Public Law andLegal Theory Research Paper SeriesResearch Paper No. 53 December 2003
 
B
OYLE
_
FMT
.
DOC
2/24/2003
 
1:09 PM
THE SECOND ENCLOSURE MOVEMENTAND THE CONSTRUCTION OF THEPUBLIC DOMAIN
J
AMES
B
OYLE
*
The law locks up the man or womanWho steals the goose from off the common But leaves the greater villain looseWho steals the common from off the goose.The law demands that we atoneWhen we take things we do not own But leaves the lords and ladies fineWho take things that are yours and mine.The poor and wretched don’t escape If they conspire the law to break;This must be so but they endureThose who conspire to make the law.The law locks up the man or womanWho steals the goose from off the common And geese will still a common lack Till they go and steal it back.
Anonymous
P
ART
O
NE
: E
NCLOSURE
 IT
HE
F
IRST
E
NCLOSURE
M
OVEMENT
 This poem
1
is one of the pithiest condemnations of the English enclosuremovement, the process of fencing off common land and turning it into private
Copyright © 2003 by James BoyleThis article is made available by the author under a Creative Commons License athttp://www.creativecommons.org/licenses/by-sa/1.0It is also available athttp://www.law.duke.edu/    journals/66LCPBoyle.* Professor of Law, Duke University.An earlier and considerably shorter version of this article appeared as
Fencing off Ideas
,
 
D
AEDALUS
, Spring 2002, at 13. I wish to thank Yochai Benkler and Larry Lessig for comments, andDavid Silverstein, Matt Jones, Greg Manter, and Victoria Von Portatius for their research.1. Apart from being anonymous, the poem is extremely hard to date. It probably comes from theenclosure controversies of the eighteenth century. However, the earliest reference to it that I have beenable to discover is from 1821. Edward Birch was moved to compose some (fairly poor) verses inresponse when he reported “seeing the following jeu d’esprit in a Handbill posted up in Plaistow, as a‘CAUTION’ to prevent persons from supporting the intended inclosure of Hainault or WalthamForest.” He then quotes a version of the poem. Edward Birch, T
ICKLER
M
AG
., Feb. 1821, at 45. In1860, a staff writer for the journal
 Notes and Queries
declares that “the animosity excited against theInclosure Acts and their authors . . . was almost without precedent: though fifty years and more havepassed, the subject is still a sore one in many parishes. . . . I remember some years ago, in hunting over
 
B
OYLE
_
FMT
.
DOC
2/24/2003
 
1:09 PM
34
L
AW AND
C
ONTEMPORARY
P
ROBLEMS
[Vol. 66:33
property.
2
In a few lines, the poem manages to criticize double standards,expose the artificial and controversial nature of property rights, and take a slapat the legitimacy of state power. And it does this all with humor, without jargon, and in rhyming couplets. Academics (including this one) should takenote. Like most of the criticisms of the enclosure movement, the poem depictsa world of rapacious, state-aided “privatization,” a conversion into privateproperty of something that had formerly been common property or, perhaps,had been outside of the property system altogether. Sir Thomas More went fur-ther, though he used sheep rather than geese to make his point. He argued thatenclosure was not merely unjust in itself, but harmful in its consequences—acause of economic inequality, crime, and social dislocation:
But yet this is not only the necessary cause of stealing. There is another, which, as Isuppose, is proper and peculiar to you Englishmen alone. What is that, quoth theCardinal? Forsooth my lord (quoth I) your sheep that were wont to be so meek andtame, and so small eaters, now, as I hear say, be become so great devourers and sowild, that they eat up, and swallow down the very men themselves. They consume,destroy, and devour whole fields, houses, and cities. For look in what parts of therealm doth grow the finest and therefore dearest wool, there noblemen and gentle-men . . . leave no ground for tillage, they enclose all into pastures; they throw downhouses; they pluck down towns, and leave nothing standing, but only the church to bemade a sheep-house. . . . Therefore that one covetous and insatiable cormorant andvery plague of his native country may compass about and enclose many thousandacres of ground together within one pale or hedge, the husbandmen be thrust out of their own.
3
 
The enclosure movement continues to draw our attention. It offers irresisti-ble ironies about the two-edged sword of “respect for property,” and lessonsabout the way in which the state defines and enforces property rights to pro-mote controversial social goals. The most strident critics of the enclosuremovement argue that it imposed devastating costs on one segment of society.
an old library discovering a box full of printed squibs, satires and ballads of the time against the actsand those who were supposed to favour them,—the library having belonged to a gentleman who playedan active part on the opposition side.” The author then quotes the first verse as a “naive epigram . . .which forcibly impressed itself on my memory.” “Exon” Ballads Against Inclosures, 9 N
OTES AND
Q
UERIES
, at 130-131 (2nd ser., Feb. 1860). The context makes it appear that the poem itself must datefrom the late 18th century. In other sources, the poem is sometimes dated at 1764 and said to be inresponse to Sir Charles Pratt’s fencing of common land.
See, e.g.
, Dana A. Freiburger, JohnThompson, English Philomath—A Question of Land Surveying and Astronomy, poster papersubmitted to the History of Astronomy Workshop University of Notre Dame, (July 1-4, 1999), note 15,
available at 
 http://www.nd.edu/ ~histast4/exhibits/papers/Freiburger/index.html (last visited Dec. 19,2002). This attribution is widespread and may well be true, but I have been able to discover nocontemporary source material that sustains it. By the end of the nineteenth century, the poem wasbeing quoted, sometimes with amusement and sometimes with agreement, on both sides of theAtlantic.
See
Ezra S. Carr,
 Aids and Obstacles to Agriculture on the Pacific-Coast 
, in T
HE
P
ATRONS OF
H
USBANDRY ON THE
P
ACIFIC
C
OAST
290, 291 (San Francisco, A.L. Bancroft and Co. 1875); E
DWARD
P. C
HEYNEY
, A
N
I
NTRODUCTION TO THE
I
NDUSTRIAL AND
S
OCIAL
H
ISTORY OF
E
NGLAND
219(1901).2. Although we refer to it as
the
enclosure movement,” it was actually a series of enclosures thatstarted in the fifteenth century and went on, with differing means, ends, and varieties of stateinvolvement, until the nineteenth century.
See, e.g.
, J.A. Y
ELLING
, C
OMMON
F
IELD AND
E
NCLOSUREIN
E
NGLAND
, 1450-1850 (1977).3. T
HOMAS
M
ORE
, U
TOPIA
32 (Alfred A. Knopf 1992) (1947).

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->