Also by John Hanson Mitchell
Ceremonial Time
Living at the End of Time
A Field Guide to Your Own Back Yard
The Wildest Place on Earth
Walking towards Walden
Following the Sun
The Rose Caf
The Paradise of All These Parts: A Natural History of Boston
The Last of the Bird People
An Eden of Sorts: The Natural History of My Feral Garden
University Press of New England
www.upne.com
1998 and 2015 John Hanson Mitchell
All rights reserved
Manufactured in the United States of America
First University Press of New England paperback edition 2015
Originally published in 1998 by Addison-Wesley, an imprint of Addison Wesley Longman, Inc.
ISBN for paperback edition: 978-1-61168-719-4
ISBN for the ebook edition: 978-1-61168-775-0
For permission to reproduce any of the material in this book, contact Permissions, University Press of New England, One Court Street, Suite 250, Lebanon NH 03766; or visit www.upne.com
Library of Congress Control Number: 2014955379
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Preface to the New Edition
I was born and raised in a town that seemed to have no clear demarcation of property. Kids wandered at large there, setting out after breakfast and ranging through private backyards and gardens and, as in my case, spending hours in a wooded plot of private land we regarded as our own Sherwood Forest. As a result, after I left the town and even into my adult years, I became a notorious trespasser, ranging over private and public properties at will, a habit that I seemed to have shared with my hero Henry Thoreau, who favored what he called cross-lot walking. Because of these forays, I was periodically stopped and harangued by local landholders, and occasionally by the police. In later, more reflective years I began to wonder how it came to pass that certain patches of the wild earth could be set apart, privatized, and designated as forbidden territory to all but a select few. This book was an attempt to better understand that history.
Private property, as I learned, is a somewhat odd legal apparatus as far as landholding is concerned, and until recently it was more or less unique to American law. In most cultures around the world, land has been held by members of a community or an institution, such as the church, or was a territory controlled by powerful chieftains, lords, or kings and queens. But however held, control of land has forever been a source of contention. Even here in the United States, where the right to private property has been active ever since it was ensconced in the American Constitution, some of the most complicated legal cases that come up before judges of local courts all the way to the U.S. Supreme Court involve questions of land ownership and rights of land usethat is to say, who gets to do what with what kind of land. This, in fact, is the civilized way of dealing with such questions. Family feuds have developed that have gone on for generations over land. Neighbors have come to blows over ownership, and of course wars have been fought over control of land, the longest and most vicious of which were probably the series of battles that took place between 1675 and 1890 between the European colonists of the Americas and the native peoples. The problem I faced with this project was how to tell such a long, complicated, and potentially tedious story. But as is often the case in such situations, I found an answer in my own backyard. Not far from my house there is a five-hundred-acre tract of land that, over the course of its roughly three thousand years of human occupation, has experienced almost all of the various types of land-use control. For most of its history the land was what Europeans would term terra nullius, land belonging to nobody. The prehistoric native peoples of the region were nomads who followed herds of game and rarely settled for any length of time. About three thousand years ago, Native Americans began to practice a system of land use known to anthropologists as usufruct, in which certain people, usually members of a specific tribe, were allowed to use certain resources on the land but not other resources. No one owned the land; they simply had, at certain seasons, rights of use, generally agreed upon by consensus. At the time of the arrival of the English in the early 1650s, the area was common land: native people lived there and farmed and hunted and gathered plants, and it may even have been considered sacred. By 1654 it had become crown land, controlled by British Law, and it remained so until the American Revolution. In 1791, it was privatized by American law, and then in 1980 it came full circle and was purchased by a town land trust and was restored to common land, open to all, as it had been in prehistoric times.
I did my main research on the property by walking there and trying to understand the lay of the land and whatever remnants I could find of past occupation. I also consulted the usual sourcesold maps, surveys, and legal documents, including the original deed, signed in 1725 with the traditional X by a woman named Sarah Doublet, the last Native American who was by then considered the owner (a term she would not have understood) of the tract. By exploring the land itself and studying the natural history, archeological history, and the lives of the Native Americans who had lived there for a thousand years or so, I fell into a subtext of folktales populated by local denizens, including Native American shamans, water monsters, old farmers with long memories, cruel gun-toting overlords who would open fire on trespassers, and shy older women with fond memories of an almost mythic Amazonian horse woman who once lived on an island on a haunted pond. Local legend, perhaps based on historical fact, also held that this particular plot of land had been sacred to the local Native American inhabitants, partly because it is an epicenter of local earthquakes, which periodically occur to this day. The Indians believed the four winds were trapped inside a hill that lies at the center of the tract, and historical records from the English report the presence of a deep humming sound that would periodically issue forth from the earth there. According to some contemporary interpreters, the land itself is still held sacred by certain local people, and in factin the thickets near the southern part of the areathere is a mouldering, plant-covered construct of apparently ceremonial stones arranged in the form of a mini Stonehenge.
...
Trespassing was originally published in 1998 to favorable reviews and was used as supplementary text (perhaps as comic relief) in law schools. I even had letters from lawyers asking for writing advice or asking for squibs for their own land-related books, as if I were some authority on land-use law. The greatestmost potentially embarrassingsurprise came to pass at a lecture I was asked to deliver to a local historical society. The root of private property was nourished, as were many other legal systems, in the feudal structure of medieval England. Of all my various sources on this form of land control, one of the best, and perhaps most arcane, were the footnotes of a legal volume called
