Lawscape: Property, Environment, Law by Nicole Graham

Author:Nicole Graham
Language: eng
Format: epub
Tags: Development Studies
Publisher: Routledge
Published: 2010-07-26T04:00:00+00:00

4.3.2 Land markets

Alienability, or the right to transfer land by sale or other means, was, in the eyes of the American revolutionaries, the defining and distinguishing feature of American property law. Describing property law as feudal and emphasising restrictions on its alienability was a complaint against imperial authority. Yet, the contradiction of the claim was that the so-called democratisation of property in the colonies was not so far removed from developments in English property law. Certainly, the influence of the feudal doctrines of tenure and estates remained powerful in England and the idea that land ownership was essentially a form of landholding from the Crown was technically accurate in England. Even so, the agrarian, industrial and scientific revolutions of seventeenth- and eighteenth-century England were made possible in large part by the weakening of the feudal character of English property law such that the commercial nature of real property transactions was regarded as inevitable (if threatening to the landed aristocracy). In British North America, as in Australia, the idea that land grants, and (later) the alienability of land, made those polities more democratic was a powerful one. Thus, no matter that the triple principles of private property, exclusive possession and alienability derived from England – the developing narrative of nationalism in the British colonies overlooked its intellectual, English origins (Alexander 1997: 84–85).

The system of alienating Crown land through free land grant in colonial New South Wales evidenced alien concepts of land and law. British sovereignty was the first condition of both these modes of acquisition. Land could be neither granted nor sold were it not already exclusively possessed of a sovereign: private or public. The system of free land grants, as Bentham and Wakefield had remarked, were based on political favour and that related land law to the hierarchical class structure of English society. The assignment of free or convict labour to landholding officers marked ‘the rise of landed property with all its imported prestige, privileges and rights’, which was ‘inextricably bound’ with rising mercantile activity and a merchant class (Ashton 1987: 16). The operation of land law in colonial New South Wales at this time was certainly different from the operation of private property law in England, but the capital economy and social structure it produced was not. The subsistence of the colony even from the earliest years was never more important than individual profit: a point well demonstrated by the monopoly of wheat production and trade during the interregnum period between Governor Phillip’s departure in 1792 and Governor Hunter’s arrival in 1795. Landholding officers rapidly increased their wealth and status through monopolising the production and sale price of wheat. The capital gains of officers also allowed them to use their land for grazing and pastoralism. Although small settlers such as emancipated convicts and free migrants were numerically predominant in the colony, their landholding was limited to 60 acres or less and they lacked the acreage and capital to graze animals. The officers produced wheat not to share with the colony but to sell to the colony, at considerable profit.

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