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08-05-2003, 12:20 AM

(Nick Maclaren) wrote in
:

In article ,
Victoria Clare wrote:
(Nick Maclaren) wrote in news:b9bqlt$d74$1
:

It is a mistake to think of most plants as individuals - they are
part of a population. My point here was that a public right that
had existed from time immemorial, and had been enshrined in English
law for nearly two millennia, was taken away and given to the
'landowners'. Exactly as with the Norman game laws and the
Enclosures Acts.

OK, I agree mostly but I think that's a bit much.

'Time immemorial': no such thing! You mean 'for rather a long time'.

Eh? No, I don't! I mean time immemorial - i.e. dating back to before
the earliest records.

I disagree. Early records aren't big on natural features at all, and
there many years of British history for which we have no written records
at all, let alone legal documentation and process. It is pure guesswork
to say that during that time people 'probably' did the same as what they
did later, or even earlier.

And 'enshrined in English law for nearly 2 millennia' - are you sure
about this? The Roman empire is well-documented, but not *that*
well-documented, so far as I am aware?

Yes, I am sure. And it is that well documented. I can't tell you
the exact details, but one relevant term is "res nullius".

So far as I was aware, that originally related to deserted, unclaimed or
abandoned property, or the spoils of war, and the idea was that things
belonged to the first claimant, who, thereafter, owned them. It may
relate to wildflowers too, but I haven't yet found any original sources
for this. I have found mention of 18th and 19th century interpretation
of Roman law, but that is unlikely to be accurate. Can you give me more
detail?

My understanding was that woodland would have been 'in use' and would
belong to a community or an individual (not 'the community' which is a
modern idea.) You might have got away with removing unimportant plants
like bluebells, but I suspect an attempt to walk off with something of
value like pignut would be met with a stick with nails on. And we don't
know enough about the early medieval period to say for sure that, say,
bluebells were *not* used for something that would cause the owner of
the woodland to assert their ownership.

There is no legal tradition that can really claim continuity over that
long a period, common law or no common law. I'm pretty sure that
no-one has a definitive answer to 'what was the law on removal of
plants from private land in early medieval Mercia' (though I'd love to
know if you do!)

Yes, there is. Many of them. You are almost certainly right that
there is no DEFINITIVE answer, but there are some pretty good records.
Certainly, enough to prove that there was no crime comparable to
that introduced by that Act.

There really isn't that much pre-Conquest - not unless this is new stuff
I am not aware of?

There are letters, edicts, the odd law, histories, charters - but really
not enough to say exactly what sort of law was actually being used day
to day in people's lives, particularly as the country was so fragmented
for so long. Even if you assume that South Britain stuck exactly to
Roman law as it was c 200 AD (and that Roman law said exactly what you
say it does) things are pretty certainly going to be different up in the
Danelaw, for example, or in early Irish-influenced Northumbria.

Unless the thinking has changed radically recently, the Carolingian
interpretation of 'Roman law' was pretty different to that of the Roman
Empire, and we really have no idea about 'common law' at all at that
date - and that goes doubles for isolated Britain.

(I like Rackham's work, but I think he does have a bit of a tendency to
say 'we have no mentions of X' and conclude something from that, when
really the only accurate thing we can conclude is that we have no
evidence for or against X, and that this is annoying.)

Hey, I think we are off topic...

Victoria