Acknowledgements
An early inspiration for this book came from Noel Thompson’s The Real Rights of Man 1 It was from Thompson that I first learned of the ‘false tree of liberty’.2 In learning more, I profited from the scholarship of many authors, but perhaps especially Alastair Bonnett and Malcolm Chase.
I want to acknowledge the enormous importance for my understanding of the issues I discuss in this book of work by Peter Linebaugh and James Holstun. Footnotes are supposed to convey influence, but what I have learned from their writing goes well beyond that which any footnote could capture.
Huge thanks go to my former student Victoria Adelmant for invaluable help in preparing the text for publication. I look forward to reading her books one day. I am immensely grateful to Matt Craven and Tor Krever, who generously read and commented on the manuscript. I also wish to record my thanks for the unstinting support of Rosemary Marzio and Guy Marks.
Philip Green inhabits a very different world from the one in which I have made my professional home, but it has been my extraordinarily good fortune that he has dwelled with me here, encouraging, listening, discussing, reading, commenting, rallying and affirming.This book is dedicated to him with love and deep gratitude.
1. Noel Thompson, The Real Rights of Man: Political Economies for the Working Class 1775–1850 (London: Pluto Press, 1998).
2. See chap. 9 below.
Illustrations
1. Thomas Gainsborough, Mr and Mrs Andrews, portrait, (c. 1750), incamerastock / Alamy Stock Photo 9
2. Thomas Gainsborough, The Cottage Door, Cincinnati Art Museum, (c. 1778),The Artchives / Alamy Stock Photo 10
3. The Diggers of Warwickshire to all other Diggers © The British Library Board, Harley MS 787/11 61
4. James Gillray, Smelling out a rat, Chronicle / Alamy Stock Photo 100
5. Tom Paine’s Nightly Pest, published by Hannah Humphrey in 1792 (hand-coloured etching), Gillray, James (1757-1815) / Courtesy of the Warden and Scholars of New College, Oxford / Bridgeman Images 111
6. Byron, Frederick George, Contrasted Opinions of Paine’s Pamphlet 1791 © Fitzwilliam Museum, Cambridge 117
7. The Republican attack. James Gillray 1795. Art Collection 2 / Alamy Stock Photo 126
8. Copenhagen House published by H. Humphrey, 1795 (print), Gillray, James (1757-1815) / London Metropolitan Archives, City of London / Bridgeman Images 143
9. Thomas Spence, cat token, 1796. ©The Trustees of the British Museum. All rights reserved 178 Thomas Spence, token, 1795. © The Trustees of the British Museum. All rights reserved 179
10. Philip Dawe, The Bostonians Paying the Excise-Man, or Tarring & Feathering, 1774, Pictorial Press Ltd / Alamy Stock Photo 213
11. A foreign tree, subitarius Engraving, Musée de la Révolution française. Inv. MRF 1988.72.2, © Coll. Musée de la Révolution française / Domaine de Vizille 228 British tree of true Liberty, stabilissimus Engraving, Musée de la Révolution française. Inv. MRF 1988.72.1, © Coll. Musée de la Révolution française / Domaine de Vizille 229
12. REUTERS, An opposition supporter with pieces of bread taped onto his head shouts slogans during anti-government protest in Sanaa 3 February 2011 242
13. New path after autumn shower, Newcastle Town Moor, October 2004. Jacky Longstaff 247
Introduction
‘And live with all the rights of man’
Who was the first person to use the English phrase ‘the rights of man’? Thomas Spence, a little remembered but once notable figure on the London radical scene of the late eighteenth and early nineteenth centuries, claims that it was him.1 The occasion was a visit which Spence made one day around 1780 to a man and woman who were living in a cave opposite Marsden Rock — an outcrop off the north-eastern coast of England.2 Marsden Rock is near Newcastle upon Tyne, which is where Spence was born and where he lived until his move to London some years later.
According to Spence, the man and woman had been ‘ill-used by [their] landlords’.3 Spence does not go into detail, but whatever happened, we may guess that it involved eviction, perhaps repeated evictions, after which the couple had got fed up and decided to make a home for themselves in this cave. As the cave was quite small when they first found it, the man, who was a retired miner and has since been identified as one Jack Bates, had enlarged it by blasting the rock with explosives, in the process earning the nickname which Spence uses to refer to him: ‘Jack the Blaster’. Spence gives us to understand that Jack the Blaster’s unusual dwelling had become something of a tourist
1. See Alastair Bonnett, ‘The Other Rights of Man: The Revolutionary Plan of Thomas Spence’, History Today 57(9) (2007) 42, 44–45.
2. Marsden Rock is a column of rock or ‘stack’ lying just out to sea at Marsden in South Shields.
3. Quoted in Alastair Bonnett, ‘The Other Rights of Man: The Revolutionary Plan of Thomas Spence’, History Today 57(9) (2007) 42, 44.
A False Tree of Liberty. Susan Marks, Oxford University Press (2019). © Susan Marks. DOI: 10.1093/oso/9780199675456.003.0001
attraction by the time he visited it. Jack and his wife Jessie made a little money by supplying refreshments to those who came on day-trips to see them.
We don’t know what the other visitors thought, but where Spence is concerned, it is clear that he was absolutely delighted to meet Jack and Jessie, and thrilled by their decision to move out of the reach of any landlord and by what that seemed to him to represent. In his words, he ‘[exulted] in the idea of a human being who had bravely emancipated himself from the iron fangs of aristocracy, to live free from impost’ — by which he meant, primarily, rent. It was in this state of exultation that Spence was inspired, as he explains, to write ‘extempore with chaulk above the fire place of this free man’ the lines which are said to justify his claim to be the first to make ‘use of the phrase “[the] rights of man” ’:
Ye landlords vile, whose man’s peace mar Come levy rents here if you can; Your stewards and lawyers I defy, And live with all the RIGHTS OF MAN.4
The site of Jack and Jessie’s cave is now a pub called The Marsden Grotto.You can still see their fireplace behind the bar, though Spence’s chalk marks on the wall above have long gone.That may not be such a great loss, as, in fact, he was not the first person to use the English phrase ‘the rights of man’. There exists textual evidence for its use going back at least to the beginning of the eighteenth century.5 Yet the phrase’s occurrence was undeniably rare before 1780, and from another perspective, those extemporaneous lines of verse do seem significant as an early invocation of a quite distinctive kind.
Note how Spence frames the rights of man as a matter of emancipation from the clutches of rapacious landlords and their henchmen stewards and lawyers. If we reflect on today’s human rights, that is hardly the way anyone would be likely to frame what they are about. To be sure, our twenty-firstcentury human rights include the right to adequate housing, with implications for eviction. But protection of the right to adequate housing is compatible with subjection to landlordly rapacity. As many have observed, international human rights law carries forward a tradition of which the right to property has always been a cardinal principle.
4. Quoted ibid, 45.
5. See Peter de Bolla, The Architecture of Concepts: The Historical Formation of Human Rights (New York: Fordham University Press, 2013), esp. 50, 102, 111 et seq. See also Lynn Hunt, Inventing Human Rights (New York: W.W. Norton, 2007), 22–24.
Against that background, Spence’s story opens up an intriguing vista — a vista of another tradition, in which what is important is not the right to property, but instead the dispossession of the unpropertied.With Spence, the focus of attention shifts to the rights that needed to be taken away in order that private property could arise, and to the demands and actions by which those dispossessed have sought, and might again seek, to remake their future on a different basis. As he tells it, Jack and Jessie Bates ‘lived with all the rights of man’ because they had thrown off their dependence on the men of property, who could not now continue to exploit and oppress them.
This book investigates the conditions in which such an idea of the rights of man arose, its relation to prior currents of activism and thought, and its place in the wider discourse of the rights of man of late eighteenthcentury England. For if the phrase ‘the rights of man’ had occurred only rarely before 1780, things, of course, changed dramatically barely a decade after Spence composed his ditty. With the French Revolution came a remarkable debate about the significance of the events in France for England, thanks to which the rights of man became, for a time, an essential and unignorable theme of public political discussion. Edmund Burke’s Reflections on the Revolution in France and Thomas Paine’s Rights of Man are just the best known of very many publications associated with that development.
No straight line
Before going further, I need to address an important question. I have been talking about eighteenth-century conceptualisations of the rights of man and human rights as we know them today as though they have something to do with one another and even belong in the same historical narrative. But do they? To refer to human rights in the twenty-first century is to refer to a worldwide social movement, area of governmental and intergovernmental activity, field of professional practice, and multidisciplinary terrain of academic enquiry. Our human rights nowadays are protected by international law. We have procedures for invoking that law, courts and committees to interpret and apply it, and fora in which it is developed, promoted, evaluated, and continuously amended and institutionally reformed. None of this existed in the eighteenth century.
In his book The Last Utopia, published in 2010, Samuel Moyn emphasises the novelty of the phenomena I have just mentioned, and debunks as a ‘myth’ the notion that human rights have ‘deep roots’ which connect them with the revolutionary declarations of the eighteenth century.6 The search for precursors is misconceived, he writes, because the project in the eighteenth century was to create a new kind of popular sovereignty and nation-state, ‘not [as in the case of human rights, to] move beyond sovereignty and the state altogether’.7 Put differently,‘[f]ar from being sources of appeal that transcended the state and nation, the rights asserted in early modern political revolutions . . . were central to the construction of state and nation, and led nowhere beyond’ them.8 Those rights were about ‘a whole people incorporating itself in a state, not a few foreign people criticizing another state for its wrongdoings’, ‘a politics of citizenship at home, [rather than] a politics of suffering abroad’.9
Critics of this argument have pointed out that the distinctions made here are overdrawn.10 Human rights do not transcend the state or move beyond sovereignty. International human rights law is made by states, and is hence an expression of state sovereignty.The state is the main focus of efforts to secure the implementation of internationally protected human rights. Domestic remedies are central to — the front line of — human rights enforcement. Certainly, evidence abounds of human rights being treated as though they were about suffering abroad and foreign people criticising other states for wrongdoing.Yet it is notable that government officials and others in turn face criticism for that approach, evincing as it seems to do a belief that arrangements within their own country give rise to no issues of human rights. As for the eighteenth century, its politics of citizenship at home may prove on closer inspection also to have been a complex matter, incorporating internationalist or universalist dimensions, along with sub-national and local-customary ones.11
These things said, it is plainly the case that any ‘search for precursors’, or attempt to connect concepts from widely disparate epochs, must be handled with care. Concepts gain sense from the historically specific conditions
6. Samuel Moyn, The Last Utopia (Cambridge, MA: Harvard University Press, 2010), 12.
7. Ibid, 23.
8. Ibid, 12.
9. Ibid, 26, 12.
10. See, e.g., Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’, Harvard Law Review 126(7) (2013) 2043, esp. 2069–2070, 2072.
11. See further chaps. 7 and 8 below and the references there cited.
in which they are deployed. While human rights are often represented as natural rights, birthrights, or rights inherent in human existence, that representation itself has a history, and cannot provide a basis for treating them as positioned beyond or outside time.12 But the point here is not just that, even if similar words are used,13 and even if cognate ideas are involved, our twentyfirst-century human rights necessarily, and manifestly, differ in their meaning from the eighteenth-century rights of man. It is also that our twenty-firstcentury human rights and the eighteenth-century rights of man differ in their meaning from themselves, so to speak. There is now, and (as this book will discuss at some length) was also then, contestation over how these rights should be conceptualised. No straight line can link the present with the age of revolutions because no fixed point stands at either end.
Their proprietary attitude
Let me now say something about my interest in that period of history, and specifically, in late eighteenth-century England. In the first place, and bracketing for a moment the question of why England, it was during the late eighteenth century that the rights of man entered public consciousness and began to circulate and become familiar as a concept, discourse and problematic. Where the English-speaking world is concerned, the publication of Paine’s two-part Rights of Man in 1791 and 1792 had a lot to do with that. Estimates vary as to how many copies of Paine’s book were printed and sold, how many people read it or had it read to them, and how widely the book circulated in the cities, towns and countryside of Britain and Ireland. Paine claimed for himself colossal sales figures and vast dissemination, and some historians argue that he exaggerated his influence, encouraged by a hostile government that was grateful for the help he thereby provided in affirming the scale of the threat which the authorities professed to confront.14
12. See further Martti Koskenniemi,‘Foreword: History of Human Rights as Political Intervention in the Present’, in Pamela Slotte and Miia Halme-Tuomisaari (eds.), Revisiting the Origins of Human Rights (Cambridge: Cambridge University Press, 2015), ix.
13. Sometimes the very same words were used. Regarding the incidence and significance of the phrase ‘human rights’ during the eighteenth century, see Peter de Bolla, The Architecture of Concepts: the Historical Formation of Human Rights (New York: Fordham University Press, 2013), 48 et seq.; and Lynn Hunt, Inventing Human Rights (New York: W.W. Norton, 2007), 22–23.
14. See, e.g., Peter de Bolla, The Architecture of Concepts: the Historical Formation of Human Rights (New York: Fordham University Press, 2013), 209.
There is general agreement, however, that an exceptionally large number of copies of Rights of Man were sold in the years that followed its first appearance, that the book achieved an uncommonly high level of penetration both in and outside the British capital, and that among contemporaries it was widely perceived as a publishing sensation. It seems that the book’s title may have been a key element in its reception, though, by a small misreading, it began almost immediately to be referred to as ‘The Rights of Man’.15 A recent analysis of the database of Eighteenth-Century Collections Online shows an exponential increase in the usage of the phrase ‘the rights of man’ in 1791 — Part I of Rights of Man appeared in March of that year, and Part II the next February — and especially 1792.16 The archival materials that support this finding include other books, pamphlets, book reviews, digests, poems, songs and commentary in periodicals such as newspapers, broadsheets and journals. Dating back to a time when the cartoon was gaining significance as a mode of communication about public affairs, they also include political cartoons, as well as images of legend-bearing everyday objects.
But, of course, this is not just about one book, and nor is it just about a phrase and its uptake in public culture. Harold Laski is said to have characterised the 1790s as the ‘last great period in British history of open debate about the fundamentals of civil government’.17 When Laski lived, and for many decades thereafter, scholarly writing about the controversy over the implications for England of the French Revolution and its declaration of the rights of man mostly focused on the conflict between supporters and opponents of the continuation of monarchical government and aristocratic oligarchy.Thus, the arguments of members of the political establishment were counterposed to those of Paine and such other Jacobin sympathisers as William Godwin, Mary Wollstonecraft and John Thelwall. In more recent work, attention is concentrated as well on divisions within the radical camp. Part of the impetus for this has come from research into less ‘respectable’ figures, including Spence, but also Richard Brothers, Robert Wedderburn and Richard Lee, who have come to be understood as forming a ‘radical underworld’ in London at the time.18
15. See ibid, 210–11.
16. See ibid, 273 (Table 27).
17. Quoted in Kenneth Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (Oxford: Oxford University Press, 2013), 5.
18. See, esp., Iain McCalman, Radical Underworld: Prophets, Revolutionaries and Pornographers in London, 1795-1840 (Cambridge: Cambridge University Press, 1988). It should be noted that Laski does touch in passing on Spence, though he brackets him with Paine, and says that, together with others, they ‘are responsible for a special current of their own in the great tide of protest against
By way of example, Gregory Claeys concludes the introduction to a collection of eighteenth-century British utopian texts with the observation that ‘[t]wo roads . . . emerged from the utopianism of the 1790s’. One ‘led from a new democratic form of commercial republicanism towards the more welfareoriented forms of liberal democracy’. The second, ‘scouted by Godwin and Spence, pointed towards socialist proposals . . . [designed] to abolish vice and poverty, and to efforts to eliminate political conflict altogether’.19 In a study of William Blake (who had some connection to polite society, while also having affinities with the underground milieu), Saree Makdisi contrasts what, for his part, he terms the ‘hegemonic liberal-radicalism’ of Paine and the organised fora of 1790s English radicalism with the ‘plebeian radicalism’ of Blake and others, among them again Spence.20 As it happens, neither Blake nor Godwin (nor Brothers, Wedderburn or Lee) was very voluble on the subject of the rights of man, but in foregrounding that theme, this book will likewise highlight a divergence between positions to which it will eventually attach the labels ‘Paineite’ and ‘Spencean’.
I pass now to a second factor that underlies my interest in late eighteenthcentury England, which is that this was not only an important moment in the history of the rights of man. It was also, and far more generally, an important moment in the history of the modern world. For this time and this place saw the culmination of the developments that brought humanity capitalism. I will touch very briefly below on something of the complicated debate about the origins of capitalism, but for now it suffices to recall that most accounts tell of a system that reached its evolved form in later eighteenth- and nineteenthcentury England. A defining feature of capitalism is the phenomenon of market compulsion — the systemic obligation to carry out the activities that sustain life in and through the market — and it has long been understood that, in the case of people who are self-sustaining, the establishment of market compulsion depends on separating them from their livelihoods and hence disabling them from providing for themselves. In that connection, one aspect of what transpired in late eighteenth-century England was the nearcompletion of the long-running enclosure of the English commons.
the unjust situation of labour [and] build their system upon natural rights’ (156). See Harold Laski, Political Thought in England from Locke to Bentham (Oxford: Oxford University Press, 1920), 16, 156.
19. Gregory Claeys (ed.), Utopias of the British Enlightenment (Cambridge: Cambridge University Press, 1994), xxviii.
20. Saree Makdisi, William Blake and the Impossible History of the 1790s (London: University of Chicago Press, 2003), esp. 21–23.
Enclosure refers to the process by which large sections of the peasantry and many others who derived their subsistence wholly or partly from land were deprived of access to land and its resources. The other side of that is that it is the process by which those who owned, or were able to buy, land acquired rights of exclusive possession — that is to say, rights that were no longer subject to the cooperative agricultural arrangements and customary use-rights that had traditionally been in place.21 Janette Neeson reports that ‘[m]uch of England was still open in 1700; but most of it was enclosed by 1840’, following a marked acceleration in the pace of enclosure that occurred in the later eighteenth century.22 In The Making of the English Working Class and Customs in Common, E. P.Thompson depicts the effects of this.23 He writes of the struggles associated with the establishment of market society and industrialised production, and of the emergence of a new kind of working class consciousness. He also locates in this period the beginnings of the later middle class sensibility that preached to the proletariat about thrift, frugality, sobriety, forbearance and hard work.
Underpinning these developments was a distinctive ideology in which private profit became identified with the public good, and social progress came to mean increasing the productivity of land and labour. Science and culture were part of this too. Within the still predominantly agrarian economy of late eighteenth-century England, a new agricultural science lent support for ‘improved’ estate management, while a new landscape aesthetics exhibited and reinforced the power of the propertied. In Ways of Seeing John Berger highlights the memorialisation of that power in works of art. Indeed, ever since his exploration of the ‘special relation between oil painting and property’, his example of Thomas Gainsborough’s Mr and Mrs Andrews (fig. 1) has been held to epitomise the privatisation of landscape and land.24 The handsomely dressed pair under an oak tree in a setting of rich farmland with well-tended wheat fields and a large flock of sheep are not, in Berger’s words, ‘a couple in Nature as Rousseau imagined nature. They are landowners and
21. See further below, esp. chaps. 2, 3, 7 and 10.
22. J. M. Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge: Cambridge University Press, 1993), 5.
23. E. P.Thompson, The Making of the English Working Class (New York: Vintage, 1966) and Customs in Common (Pontypool: Merlin Press, 1991).
24. See John Berger, Ways of Seeing (London: BBC and Penguin, 1972), 106, and, for a recent restatement of this, Raj Patel and Jason Moore, A History of the World in Seven Cheap Things (London: Verso, 2018), 122 et seq.
their proprietary attitude towards what surrounds them is visible in their stance and their expressions.’25
It is often observed that there is, in this painting, no sign of any of the people who would actually have worked the land for Robert and Frances Andrews. The painting that bears their name was made around 1750. John Barrell directs attention to another painting by Gainsborough, made almost thirty years later.26 Cottage Door with Children Playing (fig. 2) depicts a modest cottage in the countryside. Children merrily play in front of the door, while a group of women look on, lit by a shaft of sunshine. As Barrell emphasises, however, this scene has a ‘dark side’. On the sunless, left-hand side of the painting, a man is bent under a heavy bundle of sticks that he is bringing home to fuel the family’s fire.‘That deformed and struggling labourer blights the landscape’, and, now quite explicitly, invites consideration of ‘the relations between rich and poor, consumer and producer’, and of the changing roles and relationships of men and women.27
25. John Berger, Ways of Seeing (London: BBC and Penguin, 1972), 107.
26. John Barrell, The Dark Side of the Landscape: The Rural Poor in English Painting 1730–1840 (Cambridge: Cambridge University Press, 1980), 70 et seq.
27. Ibid, 71. Barrell’s discussion is actually of how the painting works ‘to resist or to deny’ (73) the creation of the working class consciousness of which Thompson writes. The labourer is portrayed as suffering, but dutiful and uncomplaining, and there is no hint in the painting of any ‘social energy’ (72) exuding from him and his extended family.
Figure 1 Thomas Gainsborough, Mr and Mrs Andrews, portrait, (c. 1750), incamerastock / Alamy Stock Photo
Figure 2 Thomas Gainsborough, The Cottage Door, Cincinnati Art Museum, (c. 1778), The Artchives / Alamy Stock Photo
This brings forward a further aspect of the significance of late eighteenthcentury England, and the last I shall mention here.‘[F]or the first time’, writes Gareth Stedman Jones, ‘contemporaries [began] to discuss the meaning and implications of living in a commercial society, or what would now be called “capitalism”’.28 They raised new questions about poverty, its nature and extent, its causes and consequences, its exacerbation and remediation, engendering also new (or rather, renewed) anxieties on the part of the property-owning classes that, in the words of one prominent contemporary, ‘gratitude’ was going, and the ‘claim of poverty on Riches . . . is taken as a right’.29
28. Gareth Stedman Jones, An End to Poverty? (London: Profile Books, 2004), 10.
29. George Onesiphorus Paul, 7 August 1795, PC 1/29/A64. Quoted in John Bohstedt, The Politics of Provisions: Food Riots, Moral Economy and Market Transition (London: Routledge, 2016), 261.
Right names, rights claims
If an important moment in the history of the rights of man coincides with an important moment in the development of capitalism (understood not only as an economic system, but as a system that has shaped the modern world in all its dimensions), it seems appropriate to ask about the connection between those two things. In particular, it seems worthwhile to examine whether and how such phenomena as enclosure informed debate over the French Revolution and the rights of man, and vice versa.
The historical literature about enclosure invariably stresses that the enclosure of the English commons did not begin in the eighteenth century. As already indicated, it was a long-running process, and dates back to the late fifteenth and early sixteenth centuries.This literature also stresses that the destruction of the English peasantry was brought about by a variety of factors, of which expropriation was only one. Nonetheless, enclosure became an emblem of the changes that were transforming life in the English countryside. Michael Perelman writes of how exclusion from access to land ‘cut through traditional lifeways like scissors’.30 One blade undermined established means of securing the necessities of life. The other blade kept those affected from finding alternative survival strategies that did not involve proletarianisation.
It is well known that enclosers took a long time to get the state on board, and that, from the outset, the enclosure of England’s common and waste land encountered very considerable popular resistance. It also formed the basis of a large literature of (to use the technical term) complaint. What were the terms in which this hostility was expressed? Especially in the initial period, enclosers were denounced as ‘rogues’, ‘villains’ and ‘knaves’, and were condemned for their ‘wickedness’, ‘ungodliness’, ‘avarice’ and ‘greed’. If this vocabulary is unfamiliar to us, R. H. Tawney, writing almost a century ago, found it ‘important to observe that [people in those days] called these vices by their right names, and had not learned to persuade themselves that greed was enterprise and avarice economy’.31
30. Michael Perelman, The Invention of Capitalism (Durham, NC and London: Duke University Press, 2000), 14.
31. R. H. Tawney, Religion and the Rise of Capitalism (London: Penguin, 1938), 72. (The book’s first edition appeared in 1926.) For a recent discussion of the ‘moral’ dimensions of Tawney’s analysis, as of the analysis of Karl Polanyi and E. P.Thompson (touched on in later chapters of this book), see Tim Rogan, The Moral Economists: R. H. Tawney, Karl Polanyi, E. P.Thompson and the Critique of Capitalism (Princeton, NJ: Princeton University Press, 2017).
For present purposes, what is even more important to observe is that, in doing so, they asserted rights. They insisted on, and sought to defend, the rights of common upon which the livelihoods and independence of the rural poor wholly or partly depended. Quite different from the rights of man, these rights arose under local custom or by local prescription, and another thing stressed in the historical literature about enclosure is that rights of common were immensely variable across the country.Yet it is striking that, in asserting these emphatically localised rights, the sixteenth- and seventeenth-century opponents of enclosure also made more general claims. They pointed to the common humanity of rich and poor. They claimed a fundamental right of subsistence. They said they gave voice to the experience of the dispossessed everywhere. A big debate in the English Revolution of the seventeenth century centred on the ‘native rights of freeborn Englishmen’, but again the discursive picture is blurry as, for native rights, the forces of conservatism kept hearing ‘natural rights’.
I take — or, at any rate, in writing this book, have taken — all this to signal that the story of another tradition of thought about the rights of man in the eighteenth century must stretch back to earlier times. With that in mind, the next three chapters are devoted to texts and events of the sixteenth and seventeenth centuries. Chapter 2 considers three contributions to the sixteenth-century literature of complaint. Chapter 3 examines two early modern revolts. Chapter 4 looks at some writings that have come down to us from the Levellers and Diggers of the English Civil War. Most of the remainder of the book then addresses the rights of man debates of the 1790s. Chapter 5 introduces those debates. Chapter 6 foregrounds food insecurity as part of the context in which they unfolded. Chapter 7 relates them to land reorganisation and the ideology associated with it. Chapter 8 explores the intersection of nature and history in eighteenth-century thinking about the rights of man. Chapter 9 retraces the book’s path with specific reference to the imagery and actuality of its eponymous tree. Chapter 10 is concerned with the present day. Linking the historical periods I discuss will be, in part, the collective memory, and knowledge of the past, of contemporaries themselves, but, in part also, a lineage of which they were not aware, and which can only be reconstructed in retrospect.
The chapters that follow (with the exception of chapter 10) are limited in their focus to England. Even then, the ambit is narrow, in that I have put to one side the whole huge and properly inseparable topic of empire, for the sake of dwelling on domestic controversies. As will be clear by now, the investigation
here involves situating the rights of man within the history of capitalism.The origins of capitalism are, and have long been, the subject of great debate. A key preoccupation within that debate has been the question of how to account for the transition from feudalism to capitalism.32 To what extent was it determined by factors internal to feudalism (lord/peasant relations, seigneurial powers, patterns of landowning), and to what extent was it determined by external factors having to do with changes in the sphere of trade and commerce? Different answers to those questions have yielded different portrayals of the historical geography of capitalism. In 1991 Ellen Wood opened a book with the words: ‘The capitalist system was born in England.’33 Others disagree,34 though generally without denying that the capitalist system was very substantially raised there. But I want to mention another consideration as well, which bears on human rights. It is the surprising geometry according to which, at a certain point, universalism and localism — and much of the material to be reviewed below will be intensely local — curve around from their divergent trajectories and touch.
The historical turn
This book comes on the heels of an ‘historical turn’ in writing about human rights, evinced by a spate of publications dealing with the history of human rights that appeared in the later 2000s and 2010s. Miia Halme-Tuomisaari and Pamela Slotte remark on the salutary effect of this body of work in prompting a reconsideration of what they term the ‘textbook narrative of origins’ — socalled because it, or something like it, is recounted in the opening chapters of many international protection of human rights textbooks.35 As HalmeTuomisaari and Slotte characterise it, the textbook narrative of origins has two variants.
One variant presents the Enlightenment as the ‘moment of birth’ of human rights, and emphasises the importance of the American and French
32. See, e.g., Rodney Hilton (ed.), The Transition from Feudalism to Capitalism (London: Verso, 1976).
33. Ellen Meiksins Wood, The Pristine Culture of Capitalism (London: Verso, 1991), 1. See also Ellen Meiksins Wood, The Origin of Capitalism: A Longer View (London: Verso, 2002).
34. See, e.g., Henry Heller, The Birth of Capitalism (London: Pluto Press, 2011); and Alexander Anievas and Kerem Nişancıoğlu, How the West Came to Rule (London: Pluto Press, 2015).
35. Miia Halme-Tuomisaari and Pamela Slotte, ‘Revisiting the Origins of Human Rights: Introduction’, in Pamela Slotte and Miia Halme-Tuomisaari (eds.), Revisiting the Origins of Human Rights (Cambridge: Cambridge University Press, 2015), 1.
Revolutions and of the declarations of rights they respectively inspired. According to this account, the influence of human rights then grew and spread over the succeeding centuries, leading eventually to the adoption of the Universal Declaration of Human Rights in 1948, and thence to the various legal and institutional developments and the changes in policy and practice that have followed it. The other variant instead celebrates the Universal Declaration of Human Rights as itself the foundational moment of the phenomenon of human rights. Portraying the interwar period as a time devoid of rights initiatives, this account tells of the advent of a new era that could begin only once the world’s conscience had been awakened by the Holocaust, and by the need to ensure that such atrocities would never occur again.36
Halme-Tuomisaari and Slotte observe that, ‘[d]espite their differences’, both versions ‘convey the same message . . . [of] unilinear progress and global improvement’. Both variants (and most explicitly the first) also depict human rights as having their roots in Euro- American experience, so that ‘the textbook narrative becomes simultaneously [a] story of the inevitable ideological triumph of the Western, liberal world’.37 This creates problems for the legitimacy of the international human rights regime, and fuels perceptions that that regime is the latest iteration of the ‘civilising mission’ deployed to rationalise colonial rule. To address these perceptions, scholars and interested organisations have undertaken to show that basic tenets of human rights can be found throughout the world in diverse traditions. However, as HalmeTuomisaari and Slotte again note, that writing does not stray very far from the textbook narrative of origins, inasmuch as it uses ‘cross-cultural’ history to affirm and extol the steady rise of human rights.38
A forceful challenge to human rights history-writing in this mode was put forward by Samuel Moyn in The Last Utopia, mentioned above. The use of ‘world history as raw material for the progressive ascent of international human rights . . . [cannot] reveal the true origins’ of human rights, he writes. It simply provides ‘recent enthusiasms with uplifting backstories’.39 And
36. See ibid, 5–6.
37. Ibid, 6–7. See also Joseph Slaughter, ‘Hijacking Human Rights: Neoliberalism, the New Historiography, and the End of the Third World’, Human Rights Quarterly 40(4) (2018) 735 (arguing that the Euro-American ‘rediscovery’ of human rights in the 1970s is instead a neoliberal ‘hijacking’ of human rights).
38. Miia Halme-Tuomisaari and Pamela Slotte, ‘Revisiting the Origins of Human Rights: Introduction’, in Pamela Slotte and Miia Halme-Tuomisaari (eds.), Revisiting the Origins of Human Rights (Cambridge: Cambridge University Press, 2015), 1, 9.
39. Samuel Moyn, The Last Utopia (Cambridge, MA: Harvard University Press, 2010), 5.
again, in a later work, ‘human rights history should turn away from ransacking the past as if it provided good support for the astonishingly specific international movement of the last few decades’.40 It was Moyn’s argument that ‘human rights . . . emerged in the 1970s’, and they emerged ‘seemingly from nowhere’.41 This claim sparked extensive debate, and has been an immensely significant stimulus for the recent reconsideration of the textbook narrative of origins. For the most part, the disagreement revolves around the theme of continuity and discontinuity. Thus, in Christopher McCrudden’s summary, scholars are divided over ‘continuity and rupture: to what extent is our understanding of human rights a reflection of past uses or is it something new, representing a radical break from these past uses?’42
McCrudden’s own answer is that this is a ‘false dichotomy’; ‘the history of human rights is both one of continuity and discontinuity’. And while Moyn is ‘correct to identify several important discontinuities’, and more generally, to criticise representations of human rights as the inevitable triumph of enlightened consciousness (or awakened conscience), he ‘underestimates several critically important continuities’.43 Likewise, for Philip Alston, Moyn ‘exaggerates the discontinuities’.44 In response, Moyn has said that he ‘never denied continuities absolutely’, but that in this context, what is paramount to grasp is the contingency of relevant developments, and their often accidental character, stop-start temporality, and mostly very recent date. It follows that the ‘discontinuities are both more massive and more interesting’ than the continuities.45
In these discussions of the genesis or ‘moment of birth’ of human rights, there is a common pattern reflected in the work of both exponents and critics of the textbook narrative of origins, in which authors canvass a range of possibilities, often going back to antiquity, and then set out the case for their proposed start-date.Yet, as Michael Freeman observes, ‘[b]efore we can study
40. Samuel Moyn, Human Rights and the Uses of History (London: Verso, 2014), xiii.
41. Samuel Moyn, The Last Utopia (Cambridge, MA: Harvard University Press, 2010), 3. On this time-frame, see also Jan Eckel and Samuel Moyn (eds.), The Breakthrough: Human Rights in the 1970s (Philadelphia: University of Pennsylvania Press, 2014).
42. Christopher McCrudden,‘Human Rights Histories’, Oxford Journal of Legal Studies 35(1) (2015) 179, 180.
43. Ibid, 181 (emphasis omitted), 187.
44. Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’, Harvard Law Review 126(7) (2013) 2043, 2078.
45. Samuel Moyn, ‘The Continuing Perplexities of Human Rights’, Qui Parle 22(1) (2013) 95, 96. Exploring the interrelation of human rights to the history of social justice, Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, MA: Harvard University Press, 2018) traces a wider arc than The Last Utopia.
the history of human rights . . ., we have to know what it is the history of’.46 Similarly, Alston charges that those writing human rights histories all too frequently ‘fail to provide any meaningful definition to confine the scope of the inquiry’.47 Are they writing a history of the human rights ‘movement’, the human rights ‘regime’, the human rights ‘legal system’, or the human rights ‘idea’?
There can be no singular history, no unitary origin, of human rights because human rights are not one thing. Importantly, however, this is not just a matter of complexity, but also of the self-otherness to which I made reference earlier. As indeed in the case of capitalism, the debate over origins is in part a debate over the essential characteristics or defining properties of that which originated — what it is to ‘know’ that phenomenon (to use Freeman’s word).
Stefan-Ludwig Hoffmann writes that ‘[o]nly in the second half of the twentieth century did human rights develop into a political and legal vocabulary for confronting abuses of disciplinary state power’,48 without registering that the most controversial element of that sentence may be the identification of human rights with a political and legal vocabulary for confronting abuses of disciplinary state power.
This book investigates sources from the past that are pertinent to our understanding of human rights, but it does not seek to answer the question of when (or where and why) human rights began. It focuses on the late eighteenth century as the moment when the rights of man ‘arrived’ in English politics and culture, in the sense of entering the stream of public discourse in the country and becoming a topic on which people staked out positions. In using the phrase ‘the rights of man’, it keeps open the question of that concept’s relation, both to earlier notions of rights, humanity, and their connectedness (which, as indicated, the book also explores), and to human rights in the present.
The story I have to tell bears on the history of an idea and its relationship to change in the material conditions of life. I can concretise what I mean by
46. Michael Freeman, Human Rights (Cambridge: Polity Press, 2002), 14.
47. Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights’, Harvard Law Review 126(7) (2013) 2043, 2071.
48. Stefan-Ludwig Hoffmann, ‘Introduction: Genealogies of Human Rights’, in Stefan-Ludwig Hoffmann (ed.), Human Rights in the Twentieth Century (Cambridge: Cambridge University Press, 2011), 1–2. See also Stefan-Ludwig Hoffmann, ‘Human Rights and History’, Past and Present 232 (2016) 279 (‘[pushing] the historical revisionism of Moyn and others even further [with the argument] that we can first speak of individual human rights as a basic concept . . ., that is, a contested, irreplaceable and consequential concept of global politics, only in the 1990s, after the end of the Cold War’ (282)).
