The Ancient Roots of Trespass
The Tory government's plan to make trespass a criminal offence is part of a centuries-old tradition: using the law to protect wealthy landowners at the expense of our right to roam.
A number of different meanings have accumulated around the idea of ‘trespass’. In a religious sense, we see it rendered alternately as ‘sin’ and ‘debt’. In law, any action contrary to the civil code is technically trespassing. But in its most basic sense, all it means is ‘to walk across’, from the Latin trans and passus: think ‘to pass through’. It shares this etymology with the related term ‘transgress’, which started out equally innocently as ‘to move across’. Compare ‘progress’ or ‘ingress’.
The shift from simply moving across the land to sin, debt, and crime is an important one: law and land ownership were collapsed together in the metaphor of social disorder. While this idea might seem more suited to the world of Georgian landowners and poachers, the government seems to be reviving the traditional language of aggressive, punitive moralising. The Police Powers and Protection Bill, outlined in the 2019 Queen’s Speech, includes proposals ‘to criminalise the act of trespassing when setting up an unauthorised encampment’, upgrading it from a civil to a criminal offence, in line with the 2019 Conservative Party manifesto commitment to ‘make intentional trespass a criminal offence’.
The Queen’s Speech commitments have serious consequences for Gypsy, Roma, and Traveller (GRT) communities. The manifesto also implies a broader movement against a range of other interested groups, many of whom are co-signatories to an 18 January letter to Home Secretary Priti Patel outlining their concerns.
‘Transgress’ became transgressive earlier than we might think. Despite the January letter’s claim that the proposals constitute ‘an extreme, illiberal and unnecessary attack on ancient freedoms’, the history of landownership, or more correctly land control, is more complex than ‘ancient freedoms’ and traditional liberties.
The Forest Laws
One of the earliest and most controversial systems of access control was the Norman Forest Laws, imposed by William the Conqueror and his successors in the eleventh century. Here, the term ‘forest’ was not synonymous with woodland; forests were found across marshes, moors, and open country, and were created by the king to protect wildlife for royal hunting parties. They existed outside of English common law, and the activities of the inhabitants were heavily restricted; they could not hunt the wildlife for themselves, nor take branches for fuel or leaves for animal fodder. Dogs owned by inhabitants had to have their front claws removed to prevent them killing game earmarked for the royal court.
These sorts of offences were known as ‘trespasses against the venison’ (animals in the forest) and against the ‘vert’ (the greenery which supported the deer population). This isn’t trespass in the modern sense, primarily because it was not the movement across the land itself nor entry into a specified area that was the offence; it was the intent to carry out some sort of economic activity, such as collecting fuel or foraging, which constituted the trespass.
This is an important point when thinking back at the history of trespass and land privatisation. Pre-modern society clearly had an appreciation of the landscape in terms of leisure and recreation, but for many it was also their source of material goods, and the site of their livelihoods. In this sense, at least from the Forest Laws onwards, trespass can be seen as a crime against the natural capital of the land, not simply a crime of access; the inhabitants of the forests were not evicted, but their activities were heavily curtailed.
Aside from a brief revival under King Charles I, the Forest Laws gradually lost their severity and faded into legal history. But the link between passage across the land and suspected intent to profit (or at least come away with more than they were supposedly entitled) continued in the popular imagination.
Enclosure
The best-known contest over land ownership and control in British history centres on the legal process known as ‘enclosure’. This has been going on in Britain in some form since at least the thirteenth century. It usually involved collapsing together several smaller parcels of farmland into a single farm, which would then be enclosed by a fence or hedge. This process allowed the landowner to profit from the economies of scale that were available with larger farm holdings, whereas previously they might have rented these parcels of land to tenants who supported their household by grazing a cow or geese.
Often this was done to allow the keeping of larger flocks of sheep, a trend stimulated by the increasing price of English wool in the late medieval period. In 1517, Thomas More wrote in his Utopia that ‘your sheep, which are naturally mild, and so easily kept in order, may now be said to unpeople, not only villages, but towns’, due to the collapse in the village economies which could not support themselves without the milk, meat, honey, eggs, and animal labour provided by these small areas of land.
Worse still was the effect on the commons, private areas of land where locals had certain traditional rights. These ranged from grazing cattle and cutting peat for fuel in marshland to keeping pigs in forests and collecting building materials and firewood from woodland. These rights were customary, meaning they were not enshrined in statute, but enforced by collective agreement and community memory.
Extinguishing these rights was often the first step towards enclosure. The symbol of this deprivation was the newly enforced boundary: the wooden fence or thick hedge enclosing the field. This was the natural continuation of the link between simple passage across an area of land, and supposed intent to make use of its natural capital; stop the access, remove the customs. Protests against enclosure projects, such as Kett’s Rebellion in 1549 and the 1607 Midland Revolt, involved the tearing down of these barriers by large groups, which aimed to reassert their rights to access and use the fields.
Echoes of this kind of mass civil disobedience can be seen in the April 1932 Kinder Scout trespass, a milestone in public access to the countryside, where several groups of recreational walkers, organised by Benny Rothman and the British Workers’ Sport Federation, made their way across Kinder Scout in the Peak District to protest the lack of access rights for ramblers. This marked a shift in discussions around trespass when compared with enclosure and earlier forms of land privatisation: it had now broadly lost its association with the natural capital of the land. However, legislation did not reflect this, and continued to operate as though ramblers, poachers, and fence-breakers were all one in the same. Trespass was once again simply ‘passing through’, but intervening centuries of landownership legislation and enclosure had rendered it an offence.
Obsolete Laws
Most people outside of agriculture don’t have an economic relationship with the countryside, only an aesthetic or recreational one – hence the role of recreational organisations such as the British Mountaineering Council and Cycling UK in the open letter to the Home Secretary. But buried amongst the co-signatories are other organisations like Homeless Link and Friends, Families and Travellers, which remind us of the continued importance of land access for many groups. Historically, charges of trespass made against unhoused and GRT communities were used as measures of social control, forcibly relocating them to other jurisdictions. Criminalising instances of non-violent and non-destructive trespass only intensifies this sort of marginalisation.
The push for these sorts of measures is almost entirely political, rather than practical. 75 percent of police respondents to a 2018 consultation on the new measures said that they felt existing powers to limit unlawful entry and occupation of private land were sufficient, and supported keeping trespass a civil offence. The Home Office’s reasoning rests on an outdated rhetorical link between land and law, between a well-ordered society and a well-ordered landscape – one which is likely to alienate their rural, middle-class voters, as well as further ostracising disadvantaged groups.
The boundaries of activity became the boundaries of access, and communities in Britain have found themselves hemmed in by a patchwork of bureaucracy and bylaws intended to defend a type of land that no longer exists from people who have no economic interest in it. Radical as they may seem at first look, the measures under consideration by the Home Office can be seen as a return to the traditional language of the party of landowners: long after their utility expired, these old ideas risk breeding new miseries.