Trespassing: An Inquiry into the Private Ownership of Land
By John Hanson Mitchell
A Merloyd Lawrence Book, Addison-Wesley, Reading, Massachusetts, 1998, 295 pages.
In the 19th century to be called a “curious man” was a compliment; it denoted that category of citizen who was accomplished in most of the natural science of the era. John Hanson Mitchell is, in the 19th-century sense, a curious man, in part a result of his lifelong predilection for trespassing. It is not that he is bent on mischief – when challenged he claims birdwatching, which in his case is never exactly a lie and is surely a benign form of encroachment. It’s just that Mitchell likes to ramble, and is curious about place, particularly as it affects and manifests itself in the natural world.
Trespassing is a meditation on place. For his subject Mitchell, the editor of the Massachusetts Audubon Society magazine Sanctuary, chooses part of Littleton, Massachusetts, known as the Nashobah Plantation. It is a 16-square-mile tract formerly occupied, since time immemorial, by Pawtucket Indians. Despite their more or less constant presence from long before the English arrived, the Colonists “granted” the land to them formally–after they converted to Christianity–in the 1600s. Through the vagaries of time the tract ended up in the hands of one of their number named Sarah Doublet, although by 1736 only 500 acres of the original remained. In her blind old age, Sarah ceded this remnant to two whites, in return for food, shelter, and charitable care. “That transfer marked the end of Indian land tenure in this part of the world,” writes Mitchell, “and the beginning of a new era in land-use history.”
Do not be put off by the rather forbidding subtitle; Trespassing is highly entertaining, what any book lover will recognize as a good read. It does examine private ownership of land in fine historical detail, but does not lack for drama, not to mention comic relief. There are romantic trysts in local orchards, an ample supply of villains and heroes, side trips to England and Scotland, and to an Indian-owned gambling casino in Connecticut. There is, for example, the barefoot farmer, a local scion and major landholder in his mid-80s whose reputation rests in part on his claim not to have worn shoes since 1922, “when, for reasons he does not entirely understand, his feet began to feel cramped.” The act of trespassing requires an antic spirit – at least in the way Mitchell goes at it – and that spirit blossoms on every page.
Wry amusement is supplanted by a colder passion, however, when Mitchell turns his attention to the specifics of land ownership. “With the aid of applied mathematics and instruments to determine contours, lengths, and widths, Sarah’s last 500-acre tract has now been measured and bounded and accurately delineated on paper, and divided into a group of some fifteen private lots, owned by private individuals, recorded in legal documents, certified, and filed at a registry of deeds on Cambridge Street in Cambridge, Massachusetts. The owners – a term Sarah Doublet would have had trouble comprehending – have the right to exclude nonowners from those lands the recorded deeds have determined to be their property, and they are backed in this matter by a police power and the written laws of the government of the United States of America and of the state of Massachusetts, which is now the name of the section of the continent where Sarah’s people once lived. Because of this, whenever I’m out walking through the woods and fields around here, more often than not I am in violation of the Massachusetts laws that forbid trespass.”
Yet trespassing itself is a red herring; what Mitchell is really concerned about is the transformation: from land understood in terms of its natural boundaries and used according to ancient local custom, to land as commodity. “Sarah and her people would have held their land in common and would have made decisions as to its use communally, by consensus. But in little more than 50 years, this system of holding land in common would be subsumed by the concept of private property. Within another hundred years, this new system would oversweep the entire American continent and replace the idea of the common. It was a uniquely American phenomenon, new even to the conquering English and French.”
Things have a way of turning around, however. By 1990 a new land ethic, proposed first by Aldo Leopold a couple of generations before, has begun to take hold, and the Sarah Doublet tract has begun “a slow, legal evolution back into common land.” That evolution – powered in particular by one local grass-roots campaign against development – was what got Mitchell’s attention, and resulted in this book.
Mitchell documents the campaign itself, but that, too, is almost a diversion; what he is truly interested in is how we have come to think about land. Along the way he points out that development of large tracts into single-family dwellings, the cash engine that still changes our landscape daily, is almost always a bad bargain for the town that, usually, embraces it warmly. “It is cheaper for a town to buy land for conservation than to let it become a housing development,” he points out. “Open space does not incur any expenses for a community other than theoretical lost tax revenue. If, on the other hand, a given tract of land is sold for new houses, even though the householders pay taxes, because of the increased costs for schools, roads, fire, police, and the like, the town will not necessarily cover its costs with taxes. This accounting has been known since the 1970s, but so far the message has not reached the consciousness of many town officials, at least not in the towns around Nashobah.”
The charm of the book is its eclectic mix. Mitchell does things: walks the land, sits on hillsides in the night (and gets the wits scared out of him), thinks about things. The author of several other books about the natural world, he is probably best known for his 1984 work Ceremonial Time: Fifteen Thousand Years on One Square Mile, which traces the history of one plot of land from the last ice age through the modern day. As in Ceremonial Time, Mitchell tells great stories in Trespassing, including that of a Chippewa friend named Adam Fortunate Eagle, who flew to Rome in 1973 to claim Italy for the Chippewas. Fortunate Eagle reasoned that if Columbus could do it to his ancestors, so could he do it to Columbus’s descendants. And so, deplaning, he drove a ceremonial spear into the ground – or bounced it off the asphalt – and announced his claim. The Italians, forewarned, loved the show; he was received by the Italian president and granted a papal audience. The Pope offered his ring for Fortunate Eagle to kiss; instead, Fortunate Eagle offered the Pope his own, a silver and turquoise number he’d worn for the occasion. The Pope laughed heartily and shook his hand, and declared his understanding of the plight of the Chippewas. “Thank you, my son,” Fortunate Eagle said to the Pope.
Mitchell is particularly concerned to clear up common misconceptions about property rights. Zoning laws, for example, were invented after the London Fire of the mid-1600s, to put a stop to building practices that invited such disasters and made fighting fires next to impossible. “Anyone living in the American wilds of Utah who proclaims grandly that his land is his to do with as he will still has to contend with the end result of the Great Fire of London. Like it or not, we live on top of the past, under the English system of common law, and these early English codes, organized to protect the safety of the people, were the prototypes of zoning acts and land-use codes and were as much a part of the traditional roots of American land-use law as the Fifth Amendment. One could argue that the Fire Building Acts were a curtailment of the rights of private property.… But the end result…was not only the creation of the London that is so beloved by the international visitors of our time, but also the beginning of zoning, which, as many still argue, was the end of freedom.”
Need some cocktail facts about land ownership? Our concept of property law dates from an 1805 dispute over a dead fox. Early English agricultural fields were 10 times as long as they were wide; plowing them in long furrows gave us the word “furlong.” The so-called “Wise Use” movement in the West, ostensibly composed of rugged individualists fighting for the right to do as they wish with their legally owned private property, is in large part a creation of, and heavily funded by, major timber, mining, and agribusiness conglomerates.
One of Mitchell’s side trips is to Foxwoods, the enormously successful gambling operation in Connecticut. Wandering about with a tape recorder, he is challenged by the security guards. How to explain what he is about, he wonders – and in doing so succinctly describes the book he will write: “What was I to say? I’m investigating the fate of lands held by Indians? The evolution of the concept of private property out of medieval English common law? The conflict between privately held land and land held in common? Proper stewardship?”
Exactly. And he has somehow done it with eloquence, passion, and cheerful good-humor. The book is not a diatribe. It reminds me of The Soul of A New Machine, written by Tracy Kidder in 1981. That was a literate and highly readable report on how the burgeoning new computer industry worked, and the tide of change that those machines were just beginning to bring to modern society. It became a best seller, won a Pulitzer Prize and a National Book Award, and awakened the thinking segment of the populace to an enormous social phenomenon. Last year John Mitchell published Trespassing, a similarly literate and readable treatise about how we use and how we think about the very ground we live on, with similar implications for modern society. In the vicissitudes of publishing the book has not yet found its audience. This reviewer happens to think Trespassing is as significant for the ’90s, and for the new century to come, as The Soul of A New Machine was for the 1980s.
John Jerome is the author of several books, including Stone Work: Reflections on Serious Play and Other Aspects of Country Life (Viking, 1989) and Blue Rooms (Holt, 1998). He lives in Western Massachusetts and works at home.