Friday, December 13, 2019

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period
As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:
I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.
In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.
Now I find myself reading Debjani Bhattacharyya’s new book on ecology and Calcutta, Empire and Ecology in the Bengal Delta. And that offers a new revelation. Back in the late 1970s it never occurred to me that watery spaces are a very odd form of property, if property at all. It never occurred to me, though it should have, that both the merchants and the members of the corporation (who often were the same men) were engaged in a difficult and imaginative enterprise, of making land from water. I never really thought about the watery spaces that surrounded the city as a commons. Or if I did, implicitly I might have assumed (in a quasi Turnerian way) that those watery spaces were “empty lands” awaiting settlement and colonization by “the city.” And I probably assumed, as legal historians often do, that there was a body of private law — property law — that could be drawn out of medieval and early modern England to be applied by the legally adept commercial leaders of the tiny colonial city of New York. English property could be naturally and unproblematically plastered on to the space that was, or would be, the waterlot. Law was a known and eminently useful set of resources.
But from Bhattacharyya, I learn that watery places are something more than space waiting for an expanding city. Her book “maps the transformation of what may be called soaking ecologies into a political economy of property from the late eighteenth century onward. This process of transformation happened through a braiding together of two registers of colonial power. . . One was the legal register where the ecologically variable entities of the marshes and bogs were literally translated into landed property through naming, classifying[,] and arbitrating ownership.
The other technological register consisted of the operations of drying and draining the landscape.” In addition she theorizes brilliantly about the ways that the process of making watery space into land is followed by processes of “forgetting,” that make the new, the reclaimed, land look as it was always merely landed property, and nothing else.
The conversion of watery places into land is and was arduous legally, just as it was physically difficult. To produce land — the draining and drying of land — required creative and innovative lawyering. There were models in the available legal past (I remember looking at deeds used for wharves built on early modern English cities. And there was, though I didn’t attend to them, many models available from Dutch and Flemish history). But turning water into land was (always? inevitably?) a bespoke process.
There is so much I would do differently today, if I chose to write once again about New York’s waterlot grants. Bhattacharyya’s book shows some of the ways I would do so. In particular, I would read those deeds differently. They needed different contexts. They needed the kind of imaginative work that Bhattacharyya’s book exemplifies to reveal what lay beneath (or in the water). They needed attention to the legal processes involved in draining and drying. And they needed attention to the work of forgetting.
Speaking for myself, I agree that drainage of land has long been a major issue for legal systems around the world. The typical context was usually not urban but rural - "reclamation" of swampland for agricultural purposes. But I'm not sure that turning water into land was always a bespoke process; it seems to have been one of the main things that legal systems were concerned with in many places and times.

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