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Law, Art and the Commons

The concept of the cultural commons has become increasingly important

for legal studies. Within this field, however, it is a contested concept: a
sphere for creativity, democratic access and freedom of speech, but one
that denies property rights and misappropriates the public domain. In this
book, Merima Bruncevic takes up the cultural commons not merely as an
abstract notion, but in its connection to physical spaces such as museums
and libraries. A legal cultural commons can, she argues, be envisioned as a
lawscape that can quite literally be entered and engaged with. Focusing
largely on art in the context of the copyright regime, but also addressing a
number of cultural heritage issues, the book draws on the work of Deleuze
and Guattari in order to examine the realm of the commons as a potential
space for overcoming the dichotomy between the owner and the consumer
of culture. Challenging this dichotomy, it is the productive and creative
potential of law itself that is elicited through the book’s approach to the
commons as the empirical basis for a new legal framework, which is able to
accommodate a multitude of interests and values.

Merima Bruncevic is Senior Lecturer and Research Fellow based in the

Department of Law, Gothenburg University.
Space, Materiality and the Normative
Series Editors: Andreas Philippopoulos-Mihalopoulos and Christian Borch

Space, Materiality and the Normative presents new ways of thinking about the
connections between space and materiality from a normative perspective.
At the interface of law, social theory, politics, architecture, geography and
urban studies, the series is concerned with addressing the use, regulation
and experience of space and materiality, broadly understood, and in
particular with exploring their links and the challenges they raise for law,
politics and normativity.

Books in this series:

Spaces of Justice
Peripheries, Passages, Appropriations
Chris Butler and Edward Mussawir

Spacing Law and Politics

The Constitution and Representation of the Juridical
Leif Dahlberg

A Jurisprudence of Movement
Common Law, Walking, Unsettling Place
Olivia Barr

Animals, Biopolitics, Law

Lively Legalities
Irus Braverman

Spatial Justice
Body, Lawscape, Atmosphere
Andreas Philippopoulos-Mihalopoulos

Urban Commons
Rethinking the City
Christian Borch and Martin Kornberger

www.routledge.com/Space-Materiality-and-the-Normative/book-series/SMNORM
Law, Art and the Commons

Merima Bruncevic
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
a GlassHouse book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 Merima Bruncevic
The right of Merima Bruncevic to be identified as author of this work has
been asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from
the publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without intent
to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Bruncevic, Merima, author.
Title: Law, art and the commons / Merima Bruncevic.
Description: Space, materiality and the normative. | Abingdon, Oxon ; New York, NY :
Routledge, 2018. | Based on author's thesis (doctoral - Gèoteborgs universitet, 2014)
issued under title: Fixing the shadows : access to art and the legal concept of the cultural
commons. | Includes bibliographical references and index.
Identifiers: LCCN 2017023443 | ISBN 9781138697546 (hardback)
Subjects: LCSH: Culture and law. | Law and art. | Intellectual property. | Deleuze, Gilles,
1925-1995--Influence. | Guattari, Fâelix, 1930-1992--Influence.
Classification: LCC K487.C8 B78 2018 | DDC 344/.097--dc23
LC record available at https://lccn.loc.gov/2017023443
ISBN: 978-1-138-69754-6 (hbk)
ISBN: 978-1-315-52141-1 (ebk)
Typeset in Baskerville
by Fish Books Ltd.
Contents

Acknowledgements vii
Preface viii

Volume I: (Re)Imaginations 1

PART 1
Law 3

1 Enter: from landscape to lawscape 5

1.1 A walk in the commons 5
1.2 Landscape/lawscape 7
1.3 Atmosphere 13

2 Rhizomatic jurisprudence: terra firma and terra incognita 16

2.1 Deleuze and Guattari 16
2.2 Resolving the opposites: … and law 19
2.3 Lawscape: … in law 34

PART 2
Art 49

3 Artwork: from object to hyperobject 51

3.1 Rhizome 1: viscous 54
3.2 Rhizome 2: nonlocal 58
3.3 Rhizome 3: temporal undulation 62
3.4 Rhizome 4: phasing 66
3.5 Rhizome 5: interobjectivity 69
vi Contents

4 Case studies: the contested spaces 74

4.1 Bruno Schulz and lost art 74
4.2 Wikimedia Commons and art in public spaces 88
4.3 Richard Prince and art on Instagram 98

Intermezzo 111

Volume II: (Re)Constructions 117

PART 3
Commons 119

5 Commons: being(s)-in-common 121

5.1 Property 121
5.2 Space 129
5.3 Commons 137

6 Intellectual property law: commons and schizophrenic

capitalism 150
6.1 The global aspect: TRIPS 151
6.2 Schizophrenia: intellectual property v. capitalism 155
6.3 Embodiment: content v. container 163

PART 4
Legal Commons 175

7 Ownership: possessed 177

7.1 The Deleuzian forms of possession 178
7.2 The res issues 183
7.3 Possession and commons 187

8 Exit: atmosphere 206

8.1 Visualising the lawscape: cultural commons as
an e-scape 207
8.2 Cultural commons in times of crisis: an ecology 212
8.3 Not one but several ecologies: on an apocalyptic
note 215

Bibliography 219
Index 229
Acknowledgements

Thank you Colin Perrin, and Routledge, for giving me the opportunity to
write this book the way I envisioned it.
Thank you Andreas Philippopoulos-Mihalopoulos, for seeing that it
could be part of the Space, Materiality and the Normative series, and for all
your work that has been so inspiring not just to me, but to so many of us.
Thank you Fiona Macmillan, for being a wonderful mentor and role
model, and for inviting me to Rome and Roma Tre where most of this book
was written.
Thank you Håkan Gustafsson, for opening up the world of legal philo-
sophy to me, from that very first lecture on Frankfurt School, to your
supervision during my doctoral studies, through to this day, without you, I
would not be here.
Thank you Jannice Käll, for being my friend, colleague and collaborator
that resolutely and always stands next to me.
Thank you Department of Law, Gothenburg University, for being such
an encouraging academic environment.
Thank you students, for keeping me on my toes.
Thank you Gothenburg, Rome, Paris, for the spaces of existence.
Thank you art and culture for being entangled with me and for giving
me reason to breathe.
Thank you friends, for walking with me.
Thank you family and loved ones, for being the stable foundation that
even a nomad needs.
Götaplatsen, Gothenburg
7 April 2017
Preface

Drank the kool-aid?

The summer is withdrawing. We have just arrived in London. We have four
hours here before we need to get to Heathrow to catch our flight that is taking
us back to Gothenburg. We took the high-speed Southeastern train in the
morning from Canterbury West to Charing Cross. The train was late, but inci-
dentally we were on time. We have only four hours and the clock starts – now.

Atmosphere
Change of seasons
Affect
Transportation and movement
Across territories
Time

There are five of us. We have a plan, to go on a London walk, a walk that
begins in Trafalgar Square and ends in front of Birkbeck College. We have
just left the Critical Legal Conference held at Kent University (the year is
2016, it was the conference’s 20th anniversary). Some of the “sights” on our
planned walk include Westminster Law School on Little Titchfield St. and
Birkbeck College (the Mecca of critical legal thinking in Europe as
someone at the CLC had referred to it).

Familiar
Uncanny
Networks

We begin by walking from Charing Cross to Trafalgar Square. From there, I

thought, we will be able to see Nelson’s Column, Big Ben, the Houses of
Parliament and the National Gallery all at once. But what will it mean to see ?1
Besides, we can only stay five minutes if we want to make the full walk.

1 For a general view on law and senses see The Westminster Online Working Papers Non
Liquet: https://nonliquetlaw.wordpress.com/
 Preface ix

So we walk briskly and reach Trafalgar Square rather quickly. When strate-
gically placed we can indeed see all sights, simultaneously. Standing on the
steps in front of the National Gallery we become entangled with the atmo-
sphere of the place, with the London traffic, with the noises of buses, the
excitement of tourists, the concentration of the street performers, the
frustration of Londoners trying to get on with their Sunday plans… It is
intoxicating. To see turns out to mean to enter this open space and to become
entangled with the bodies that are there, to become other, to see means
engaging all our sensorial perceptions at once. We take some photos, we
point to some landmarks, we catch some Pokémons on the go. Then we
leave. Did I mention? We are in a hurry. Three and a half hours left.

Landmarks
Spaces of culture
Museums
Entanglement
Bodies
Digital platforms

We walk up Charing Cross Road, through China Town (where Jannice

quips: “This almost feels like Singapore, with the British and the Asian
blended!”), we cross Shaftsbury Avenue, walk across Soho (we walk past
those gentrified sex shops and commercial massage parlours that are more
boring than they are subversive). As we are walking I am telling whomever
happens to be walking next to me about my own memories from living in
London: “I used to work in this shoe shop when I was a student,” “Curzon
Soho is one of my favourite cinemas in the world.” Three hours left.

Hybrid spaces
Sexuality
Identity
Memory

We reach Carnaby Street, and the discussion inevitably turns to the

Swinging 60s. The era that once defined London still seems to be an
indispensable part of the London brand or perhaps more so of its heritage.
Then we walk to Piccadilly Circus – a circus, but not one in a traditional
sense – a circular view and a focal point of traffic, information, sounds,
smells, people, vehicles and spaces. We walk up Regent Street towards
Oxford Circus. Kristina is not feeling well, it has been a long week, she has
delivered her first conference presentation. The paper she presented was
entitled “The court as the narrator: narrative strategies in the construction
of children as legal subjects”. The presentation was a success, but now, as
with most of us after a significant conference presentation, her energy
x Preface

levels are wearing thin, she is breathless, she needs to sit down, rest,
breathe, eat. Two hours and three quarters.

Heritage
Brands
Lack
Energy
Will to power

We cross Oxford Circus diagonally (they did not believe me that it was
possible!) and walk to my alma mater, the University of Westminster. Of
course we cannot enter the building, because we are not students or staff.
Andreas Philippopoulos-Mihalopoulos, Andrea Pavoni and Danilo Mandic
will be organising a conference here in November, we will be back soon.2
We are hungry. The restaurant on the corner of Little Titchfield St. is full,
no room for us, so we have to keep walking. We find another place some-
where off Goodge Street. Two and a half hours left.
During our lunch we inventory what is left to do: a run through the
British Museum, only to see the Rosetta Stone and the Elgin Marbles. We
do not have time for anything else, but I would have loved to see the
exhibition “Sunken cities, Egypt’s lost worlds”3 because I have been doing
some work on the 2001 UNESCO Convention on the Protection of the
Underwater Cultural Heritage at Roma Tre. Then we plan on going to
Store Street Espresso (best coffee in London?), Waterstones on Gower
Street (best bookshop in London – no question mark), then the School of
Law at Birkbeck and then back to the train station. Can we make it? I doubt
it, I know too many people that have missed their flights like this, underes-
timating the congestion and inertia of the London traffic. We have to get
back to Charing Cross, get our luggage, get to Paddington, take the
Heathrow Express. There may be delays. But we, or they, my friends, decide
to roll the dice, give it a try anyway. I, as they say in memes with cute cats,
“sweatz profusely”. The lunch also took longer than we thought. I tell them
that if we want to do all of this in the time frame that we have left we will
have to walk even quicker – and no complaints. They don’t listen. One
hour 45 minutes.

2 Law and the Senses Conference II, held 17–18 November 2016 at the University of
Westminster.
3 I did return two months later and see the exhibition. While it was impressive in many
ways, the irony of an exhibition on sunken cities being corporately financed by British
Petroleum was impossible to ignore, keeping in mind the Deepwater Horizon oil spill
that the very same company was responsible for a couple of years before the exhibition
itself. Was this meant to appease something? On oil spills as hyperobjects, see Morton,
2013.
 Preface xi

Barred entry
Enclosure
No room
Cultural heritage
Aleatory points
Speed

We cross Tottenham Court Road and half run towards the British Museum.
A group of women cut in before us on the street and we have to slow down.
Erik says: “This is spatial justice for you,” I give him an annoyed look. When
we finally arrive at the courtyard in front of the British Museum we realise
that we are being diverted to a tent on the left-hand side for security
checks. There is a queue there. We look at the clock.
Once through the museum security, we run. We run past that Tennyson
quote: and let thy feet millenniums hence be set in the midst of knowledge.4 Then
we run to Gallery 4 where we find the Rosetta Stone at the very entrance
(Oh I had it all wrong – it was discovered by the French and not the British!
I mutter, half to myself), we run past the Elgin Marbles. My friends all love
the female statues, with the delicate folds in the stone, that still to this day
seem to be fluttering in the Mediterranean summer breeze. I love the male
statute, the one whose head is still preserved, albeit battered. I think about
the bodies, past and present, more or less living,5 at the shores6 and in the
waters7 of the Mediterranean. Somebody remarks on the centaurs – half
men, half animals, so beyond the anthropocentric glance, posthuman. One
hour.

Borders
Spatial justice
Cultural entanglement
Slowness of time
Imperialism/colonialism
Posthuman

When we walk out of the British Museum, we are all a little bit sweaty,
increasingly exhausted, but also inspired, moved, still determined to
manage to visit the sights that are left. David walks next to me and remarks
in passing and a little bit absentmindedly: “I still think the friezes should be
returned to Greece, where they rightfully belong.” “It is not that easy,” I
reply. “There is some form of legal title, a firman, and the British Museum

4 The excerpt from the “Two Voices” poem by Tennyson famously inscribed on the floor
at the entrance of the British Museum.
5 Bennett, 2009.
6 A child’s body, washed up at the shores of Turkey.
7 Drowned people, sunken ships, is that too dark heritage?
xii Preface

is a type of commons, but then the imperial aspect of it…” I run out of
breath.8 We round the British Museum and we find ourselves in front of
Senate House. We stand still for a moment. Somebody once told me that
they say that Hitler wanted this building to be his headquarters, if ever he
took over London. We laugh. “He would choose this building, wouldn’t
he?” Jannice remarks, “It looks Argentinian to me,” David says. Erik takes a
photo. Kristina is adding me on Instagram. Fifty minutes left.

Digital platforms
War machine

Then we go through the gates and enter the courtyard. We stand in front of
Birkbeck School of Law. Suddenly there is a quiet silence that is flowing
between us, somehow binding us together, connecting us to the building in
front of us. None of us says a word. But we all know that something is being
formed right then and there that will stick to us, some call it memory, others
call it hyperobjects. Then we run again. We take the side entrance to Water-
stones. “How much time do we have?” somebody asks. “Five minutes,” I reply
sarcastically. They all laugh again.
The philosophy section is on the third floor of the bookshop. We run up
the stairs. We tear down books by Deleuze, Guattari, Haraway, Husserl,
Nietzsche. We run to the tills. There is a 10p surcharge for the plastic bags.9
Nature. Oil. Plastic. Global warming. We think about the Earth for a second as
we look outside.10 The London air11 is thick as usual. Is our time up?

Environment
Air
Resources

Undulation of time: we have to head back. Still time for a coffee? Maybe. Two
matcha lattes, and three cappuccinos in take away cups later, and we are
running towards Tottenham Court Road tube station. I am in front of the
pack with David, manoeuvring through the bodies in front of us. At this
point David is the only one who is even trying to keep up the pace. We are
still talking, discussing human rights and Nancy’s concepts of singular-
plural12 as we scurry. The others are lagging behind and we keep losing sight
of them. In the end we all gather at the underground station, the subter-
ranean web of transport that will allow us to escape the congestion on the
ground and take us to the airport. On time. If we are lucky.

8 Waxman, 2010; Bring, 2015.

9 Purdy, 2015.
10 Bring, 2015.
11 Hyde, 2012.
12 Nancy, 2000.
 Preface xiii

The Northern Line takes us back to Charing Cross. We collect our

luggage and head back to the underground, to the Bakerloo Line. At
Paddington, the Heathrow Express is on time. We are on time. Terminal 5
looks like a mirage once we get to the arrival hall. We made it.

Taste
Underground
Rhizome
Singular/plural
Flight – lines of flight
Volume I

(Re)Imaginations
Part 1

Law
Chapter 1

Enter
From landscape to lawscape

1.1 A walk in the commons

Much like the title gives away, this book is, simply put, about law, art and
commons. The four hours in London can be the framework for it. It
recounts very much true events, or as true as I remember them now as I am
writing them down, a couple of months after they took place. It occurred
to me that the four hours in London encapsulate what this book tries to
show, that these four hours may perfectly depict what I am trying to discuss
and advance here. Dear reader, this book is a walk, sometimes quicker,
sometimes slower, sometimes full speed ahead, through museums,
cityscapes, cultural landscapes, through subterranean webs, into the world
of law, art and commons. It is a human story as much as it is a story of
something well beyond the human, dare I say posthuman. I do not mean
any of these as metaphors either as you will shortly see. To read this book
means to enter into the cultural commons through the lawscape, to walk in
it, to displace ourselves in it. Literally. Sometimes I walk alone, sometimes
we walk together, at times I am in the more or less reassuring company of
others, as we traverse these spheres. In this book I will be presenting
something that may at times seem like abstract, ephemeral, imaginary
concepts. Sometimes they will seem material, concrete, menacing, real, all
too real. I want you to think about the four hours in London when those
feelings overwhelm you, and know that they are at the same time true as
they are constructed figments of (my? our collective?) imagination. Rest
assured. You are in a safe environment. This is only a drill. A simulation.
To express it more plainly and bluntly. This book explores the possibility
of constructing a legal concept of the cultural commons. In order to do
that law, art and the commons need to be expressly connected. Or better
yet, the connections that are already there, binding the three together,
already entangling them, forming a space, an object, a hyperobject, will be
revealed here. I will attempt to do precisely that by setting in motion the so
called rhizome theory developed by Gilles Deleuze and Félix Guattari. I will
then fold their theory within the writings of Andreas Philippopoulos-
6 Law

Mihalopoulos on spatial justice, concentrating mainly on the notion of

lawscape.
This book discusses how to advance legal pathways that facilitate access,
ownership, control and production of art through a cultural commons.
The idea of the legal concept of the cultural commons is introduced and towards
the end of the book given a platform in law. In order to arrive there, firstly,
the commons needed to be conceived of in jurisprudence. The book there-
fore begins with a rather traditional legal approach analysing the
impediments that jurisprudence seems to face in conceiving of such a
concept as the cultural commons. Through a theoretical exercise that
opens up the possibility of so called rhizomatic jurisprudence, the first part
of the book, Volume I (Re)Imaginations, studies various perceived legal
obstacles that stand between law and a concept of the commons. Volume I
aims to get at the potential of law in imaging, reimaging, seeing or even
remembering, the commons. The second volume is called (Re)Construct-
ions and it (de and re)constructs the concept of the commons, both how it
has been described in previous research and how it may be taken forward
today. Volume II aims to analyse the potential of a cultural commons
concept and its interaction with law. The overall aim of the book is of
course to arrive at a legal concept of cultural commons in the end.
The book focuses on questions such as what does law do, what could it
do, other than settle conflicts and answer the questions: who the legal owner
of the artwork is or who owns the intellectual property right. Is it at all
possible for law to do something other than that? Can law be a productive,
creative force and envision as well as create the concept of the commons?
In order to answer those questions, I use the theory developed by the
French philosopher Gilles Deleuze (1925-1995) and the French psycho-
analyst Félix Guattari (1930-1992), particularly in dealing with law. I
develop a critique of dogmatic legal reasoning and study particular
obstacles to commons created by e.g. traditional divisions in law, for
instance the private and the public, property and personhood, inside and
outside. This is done by leaning on the philosophy of Gilles Deleuze
(henceforward “Deleuzian”) as well as the philosophy which Deleuze deve-
loped together with Félix Guattari (henceforward “Deleuzeoguattarian”).
Finally, I arrive at a discussion concerning a legal concept of cultural
commons. I do so by way of a rhizomatic legal reasoning that can conceive
of a conception of a cultural commons by means of avoiding, for instance,
common legal dichotomies (open–closed, public–private, right–heritage)
and, hopefully, overcoming them. Therein lie the theoretical and method-
ological commitments of this book.
For a reader of Deleuze, and Deleuze and Guattari, these types of
questions and approaches are obvious when using their theory. Addressing
a similar issue Deleuze once wrote in a letter:
 Enter 7

You either see it as a box with something inside and start looking for
what it signifies, and then if you’re even more perverse and depraved
you set off after signifiers. And you treat the next law as a box con-
tained in the first or containing it. And you annotate and interpret and
question and write a book about the law, and so on and on. Or there’s
another way: you see the law as a little non-signifying machine, and the
only question is ‘Does it work, and how does it work?’ How does it work
for you?… This second way of reading’s intensive: something comes
through or it doesn’t. There is nothing to explain, nothing to
understand, nothing to interpret. It’s like plugging into an electric
circuit… It relates a law directly to what is Outside…1

In that vein, this book seeks not to see law as a “box” but instead it attempts
to get beyond this proverbial box that seems to regard law either as a
cognitive creation or as an ontological metaphor. Within this context, it
does not help to approach law as a set of boxes placed inside one another
not connected to the “outside”. It only leads to a dead-end. What I instead
aim to do is to show that by connecting law to its “outside” rhizomatically,
a lawscape is created, and here the potential for a cultural commons in law
is revealed. The theoretical approach shall be developed in detail in
Chapter 2.

1.2 Landscape/lawscape
However, it is worth pointing out already here that we must refrain from
being too theoretical. A strong connection to the material and empirical is
required. As I now start to discuss the commons I want to discuss it as a
concrete phenomenon, a space, in existence from the beginning. This is
not necessarily how commons studies are usually undertaken.
So, when we refer to the commons, what do we usually mean? Often, “the
commons” seems to refer to the so called “physical” or “natural” commons
– i.e. nature, urban spaces, fields, pastures, fisheries, rivers… Connected to
this physical or natural commons are the resources tied to it namely,
natural resources, commercial spaces, irrigation water, clean and fresh air,
fish, berries. In this context commons, it is often assumed, has to do with
the distribution and allocation of (natural, or at least physical) recourses.
Other times, when we talk about the commons we talk about certain, often
digital, initiatives or platforms like for instance the “Creative Commons”,
and the content and information shared there. Previous research on the
concept of the commons is now typically divided in these two strands,
natural and intellectual/digital commons. This is a direct consequence of

1 My emphasis, quote modified. The words in italics have been changed from the word
“book” in the original quote, to the word “law”. Quote taken from Stivale, 2005:73.
8 Law

how we usually see the commons, namely either as natural consisting of

nature and the resources in nature; or human or intellectual commons
consisting of the man-made, intellectual and cultural resources.2 Thus,
these two types of commons are usually mentioned in research and in
discussions: the natural commons and more so lately the human made,
intellectual or cultural commons. Instead, both have to do with
management of resources, it is often claimed.
I will try to move beyond these assumptions. Firstly, I will try to move
beyond the nature–culture dichotomy, by raising the impossibility of
disentangling the natural from the cultural. Secondly, I will try to move
beyond the idea of the commons as management of resources, and I will
move towards the question of being-in-the-commons, i.e. becoming
entangled with the commons as part of ourselves.3
But before I do that, let me give a Swedish example. This book does not
directly have a jurisdiction that it addresses, but it certainly has a number
of contexts, the Scandinavian being one of them. In Swedish law there is a
legal principle, which can be described as a “right to roam”, called allemans-
rätten. It is relevant in this setting.4 Various versions of this principle exist in
most Scandinavian jurisdictions.5 Allemansrätten has for a long time been
acknowledged by for instance the Swedish Supreme Court (Högsta
Domstolen) and is today also inscribed in the Swedish constitutional law6 as
well as in the Swedish Environmental Code (Miljöbalken).7 In broad terms,
the principle grants the public a right to access and roam in nature, which
means, generally speaking, that everybody may, for a limited time and on
certain terms and conditions,8 dwell in nature, hike, camp, swim in the
lakes, pick berries, and so on.
The right to roam in and access nature has in Scandinavia traditionally
been considered to be of particular significance since it is directly con-
nected to public health and wellbeing. The wellness produced by
continuous and frequent access to nature ought to be, it is argued, secured

2 Hardt, 2010. See also Bertacchini, Bravo, Marrelli and Santagata, 2012.
3 See e.g. Kapczynski and Krikorian, 2010.
4 This principle also exists in similar forms in the other Scandinavian jurisdictions, e.g. in
Norway where it is called allemannsrett and codified in the Norwegian Outdoor
Recreation Act (Friluftsloven). A similar principle exits in Finish customary law,
jokamiehenoikeus, but while it is not directly codified it is mentioned in the Finish Nature
Conservation Act (Luonnonsuojelulaki) and Criminal Code (Rikoslaki).
5 It can be compared to the Anglo-Saxon “right of way”.
6 Swedish Constitutional Law (Regeringsformen), 2:15.
7 Mainly in Chapters 2 and 7.
8 While the term allemansrätten is not defined in law, initially being a customary legal
principle, it is usually interpreted in the following manner: Short-term stay usually means
a 24-hour stay. The public is allowed to pick berries, flowers, mushrooms, cycle, hike,
swim, etc. The public may not do any harm to the nature, land, crops, animals, and so
on. The public may not disturb the private residences.
 Enter 9

and safeguarded. This wellness that access to nature gives rise to has thus
been given a legal status and transformed into a public right. Allemansrätten
as a legal construct thus connotes a reasonable and limited access to
nature. This access, however, must happen under certain terms and
conditions, and has never been of such legal character that it encroaches
on the underlying ownership of e.g. the land. The limitations to allemans-
rätten are often described in the following manner: the public may roam in
the woods but may never enter the fenced off private garden or the family
home on the land. The public may dwell in nature but this comes with the
obligation not to disturb private life, not to litter or damage the land,
nature, animals or crops.
However, within this book I need to reach even further. The pheno-
menon that I call the commons is a complex concept and not always, or only,
connected to the rights to access or rights to roam such as allemansrätten. It
can also be connected to a space or a realm where resources and people
are entangled. I will devote some time to explore what that means, partic-
ularly being entangled with artwork as a hyperobject (Chapter 3) or being
entangled with the commons itself (Chapter 5).
A further layer to the commons discussion is the economical aspect,
where the commons as a concept in economy theory is often presented
within a “prisoner’s dilemma” setting, that is, as a paradox where property
that is somehow owned or shared in common also produces free riders and
as a consequence may result in over-use and eventual peril of the under-
lying resource, create depreciation of value, and that it therefore can
undermine individual ownership and private rights on the one hand, and
the resource itself on the other hand. This tendency can then lead, it is
argued, to the now very well established tragedy of the commons.9 This is part
of a larger (liberal, or neo-liberal) argument that makes the claim that
resources will always be best managed in private, by virtue of the incentives
bestowed on the individual owner by the private property rights as a legal
and economical construction. This was at least the dominant view until
Elinor Ostrom, the 2009 Nobel laureate in Economy, managed to show in
her pioneering work Governing the Commons: The Evolution of Institutions for
Collective Action,10 how this is not necessarily always the case and how the
concept of the commons as a tool for management and governance, on the
contrary, can mean an optimal management of resources, particularly
when it comes to finite resources in nature. Building on, and moving
beyond the results found by Ostrom, I ask how a legal concept of the
cultural commons could deal with and overcome these “tragedy of overuse”
and “prisoner’s dilemma” issues?

9 The much discussed and nowadays legendary essay by Garrett Hardin, “The Tragedy of
the Commons”. Hardin, 2009, see Chapter 5.
10 Ostrom, 1990.
10 Law

In the 1972 UNESCO Convention Concerning the Protection of the

World Cultural and Natural Heritage the heritage of the world is divided
into two categories: natural and cultural. That is, it relies on a similar, not
to say the same, divide as presented so far. So I ask here, if natural heritage,
landscapes or cityscapes, can be envisioned as physical commons that partly
can be governed by legal principles such as the various forms of rights to
roam in nature or rights to the city11 formulated as e.g. the Scandinavian
allemansrätten, without causing tragedies or resource extinctions, it begs the
question whether this rationality can somehow be transposed to the
cultural landscapes? It then opens up the subsequent question; whether
the same type of legal reasoning could be applied to also govern the
cultural commons that comprises the common cultural heritage that is
(constantly being) created by the human intellect: knowledge, skill, ingen-
uity and those things connected to it such as cultural expressions and works
of art. In order to provide an answer to these broader questions we must
now start talking about the legal concept of the cultural commons more
theoretically first, and then add materiality to the discussion, constantly
asking whether a cultural commons can be conceived of legally. And could
cultural commons regimes, as with e.g. allemansrätten, be inscribed in law?
I will throughout the course of this book propose that it is possible,
provided that some (dogmatic) legal constructions are reimagined in
order to reach beyond certain obstacles that have so far hindered the
construction of an in law formulated (cultural) commons. Such obstacles
are for instance the (false?) dichotomies of e.g. the notion of the public
and the private as opposites, or that ownership of cultural works can either
be governed by a legal concept that is conceptually closed (e.g. individual
intellectual property rights) or open (i.e. a reduction or removal of the
intellectual property rights for the benefit of for instance the public
domain, freedom of expression, open access, and so on).
In the Scandinavian legal traditions, we are quite accustomed to legal
constellations such as allemansrätten as a right to roam or right to access.
Similar traditions exist in other jurisdictions both in civil law and common
law. The Swedish Environmental Code is for instance based on principles
and conceptions that are able to handle various seemingly different
interests simultaneously (e.g. conservation of nature and the biospheres, as
well as the interests of the land owners, the state, the public, future
generations, etc.), in an, at least theoretically, economically and democrat-
ically sustainable manner. Could the same be conceived of for the cultural
environment?
I will argue that today the natural and cultural commons can and must
be equated as a first step. The public has an equal claim on the right to
access the natural and the cultural commons, a claim on both the natural

11 More about that in Chapter 4.

 Enter 11

and cultural spheres; a claim on equitable access to vital resources needed

in order to feel well, partake in the community, or simply lead a (perhaps
Aristotelian?) good life. As opposed to the natural resources, the cultural
resources are not, necessarily or at all, dwindling. It means that Ostrom’s
conclusions may possibly be transferrable to the cultural sphere.12 And
more importantly, it also means that we can potentially even reach beyond
them.
And then I will go even further still. I will question whether such a clean
cut between the natural and the cultural commons at all can even be made
by adding on the layer of e.g. “subversive property” where the spatial,
personal and property are entangled, as well as the concept of “being-in-
commons” where the commons is an ecology. My approach to the commons
will be based on the constellation of a number of interests by employing the
rhizome theory and connecting it to various bodies that exist in a space. The
concept of lawscape as developed by Andreas Philippopoulos-Mihalopoulos
will clarify this argument. This is my theoretical commitment used here in
order to reach beyond dichotomistic reasoning and arrive at a spatial,
entangled, relational commons. This will help me resolve the great paradox
of the commons.
This paradox has to do with the claim that management of e.g. art can
only be governed in two opposing manners: either within a regime where
the artworks are legally conceived of as privately closed off though e.g.
intellectual property law and where access is granted on a case-by-case basis,
often in a commercial setting. In such a case one or several individuals own
the artwork and the person who can afford access is the one who is granted
access: the artwork is seen as a commodity or capital. Or the artwork is
legally conceived as completely open, as e.g. a heritage, or a free expression
or as part of the public domain, and as such it is un-owned or “owned” by
a community, or everybody. In the cases where artworks are legally con-
structed as fully open or in the public domain the incentive to create and
exploit one’s intellectual works diminishes it is argued, as this approach
restricts or removes the individual ownership right, and this can lead to
fewer works, less diversity and ipso facto become a cultural tragedy of the
commons. Therein lies the paradox, the two approaches are incommen-
surable, and as such mutually exclusive. The rhizome theory applied here
might provide an alternative to this conundrum.
The core idea of the rhizome theory in law as employed here may be that
it appears to be able to transcend these, admittedly false, dichotomies
between public and private, open and closed, as it stresses not the hostile
opposites, but rather interlinkage, the and… and… and…13 and the
potential of constructing legal concepts based on alliances rather than

12 See also Ostrom and Hess, 2007.

13 Deleuze and Guattari, 2011:27.
12 Law

oppositions. Which means that commons as a concept can be envisioned

legally, with e.g. some inspiration from the Scandinavian allemansrätten. In
this manner when put into play, the principles of the rhizome do not
dissolve but rather resolve the dichotomies of law, enabling a constellation-
based concept to be formulated legally, one that can tend to several
different interests at the same time. I will return to this claim many times
during the course of this book.
I am also putting forward that jurisprudence may already have, or
indeed has, rhizomatic qualities. The concept of the commons may be a
perfect way of exploring the rhizomatics of law, a concept where the idea
of the public and the private are allowed to co-exist and not necessarily
form a hostile opposite pairing or a dichotomy. The commons can thus be
moved away from the prisoner’s dilemma setting, from the tragedy of the
commons, from being understood as paradoxical in terms of the private
and public, or as only belonging to the extra-legal, political, sociological, or
economical realms.
As we have seen already, allemansrätten in nature comes with responsi-
bilities in terms of privacy and ownership rights; and the person who is
given the right to access nature is also simultaneously given an obligation
not to harm, disturb, litter, nor to damage the land, its resources, bio-
spheres, the animals or the crops. When we arrive at allemansrätten in
culture, it too must come with similar set of limitations, obligations and
responsibilities, i.e. to not harm the underlying personal rights and the
property connected to them. I will also return to the personhood and
property divide many times, and claim that within the approach employed
here, the commons is produced in the space that is opened up by the
entanglement of the person and the property.
Commons, as a cultural sphere formulated through a legal construct
that allows the public to, for a short term and under certain conditions,
legally access the cultural landscapes and roam there, is the result I am
trying to find in this book. The rhizomatic approach to legal reasoning
opens up the possibility to conceive of such concepts that can handle the
public and the private together, as an alliance in law. A lot of inspiration for
the arguments raised in this book has been drawn from e.g. allemansrätten
as well as the institutions that are already somehow managed and governed
as cultural commons such as museums, libraries, archives, open access
platforms, sharing initiatives…
A cultural commons as discussed here is thus imagined as the equivalent
of the hiking, cycling, camping and the picking of berries in the cultural
environment. The notion of “environment”, or more accurately ecology, is
also what further enables the connection with the concept of lawscape as
well as with the comparison to the natural commons and allemansrätten.
This ecology of law has to do with spaces where the public’s (cultural)
health and wellbeing is allowed to thrive. It certainly does have to do with
 Enter 13

democracy and resource allocation. But, as I hope to be able to show, it also

has to do with formation of identity, bodies and spatial justice. The ration-
ale of this book is therefore to engage in this discussion and in the end
present the possibilities of creating a concept of the commons that is given
a platform in law.

1.3 Atmosphere
Before we end this introductory chapter and move on to look at the
theoretical framework of this book I need to make one more short point
about its structure, a cartography of it if you like, or to paraphrase Boaven-
tura de Sousa Santos, a map for your (mis)reading.14 The atmosphere15 that
is created here, and I will have reason to return to the concept of
atmosphere later on, is a rhizomatic journey.
I have already introduced that the book is divided in two volumes:
Volume I (Re)Imaginations, and Volume II (Re)Constructions. The two
volumes have in their turn been divided into four subparts: Law, Art,
Commons and Legal Commons. The first subpart maps out the law, the
legal problem and the theory that underpins the conception of the
commons. The second focuses on artworks with an approach that centres on
placing the artwork within the context of this project by approaching it as a
hyperobject. The third subpart opens Volume II and develops the concept
of the commons by applying commons-related theories. The fourth and final
subpart fuses all three previous subparts, all the theoretical approaches and
the presented case studies, in order to arrive at a legal commons.
The book is also divided in eight chapters. Chapters 1 and 8 provide the
entrance to and the exit from the study respectively. The remaining chapters
form a serpentine journey that has been undertaken and the reader is
invited to follow, in order to travel between Chapters 1 to 8. Each of the
chapters in the middle (namely Chapters 2 through 7) have a mirroring
chapter, so for instance Chapter 2 and Chapter 5 mirror each other (theory),
as do Chapters 3 and 6 (the artwork), and 4 and 7 (the issues of possession).
The eight chapters can be summarised in the following manner.
Volume I: Chapter 1 provides the entrance to the study through an intro-
duction, description of the problem and the contextualisation of the study.
Chapter 2 introduces the main Deleuzian concepts such as rhizome, line of
flight, plateaus, (re/de)territorialisation. It connects them to the lawscape.
A critique of dogmatic legal reasoning is developed to create a space for the
conception of the commons. This chapter is structured as a critical
exercise, analysing certain jurisprudential assumptions such as the unity of

14 De Sousa Santos, 1987.

15 And as we now know, all lawscape wants to become atmosphere. Philippopoulos-Miha-
lopoulos, 2014:4.
14 Law

law, foundations of law, coherence, structure, etc. particularly in terms of

how these are presented and envisioned within dogmatic jurisprudence.
The critique is conducted by and through Deleuze and Guattari’s theory.
In Chapter 3 the artwork as hyperobject is presented. Adding on the notions
of the rhizome and the lawscape, this chapter develops the five traits of the
hyperobject as presented by Timothy Morton. The chapter argues that by
applying an object oriented ontology (OOO) and by approaching artworks
as hyperobjects a shared space is revealed which opens up for the con-
struction of the commons. Chapter 4 then presents the three
empirically-based case studies that I return to throughout the book. Case 1
deals with the mural of Bruno Schulz. It studies how a dispute concerning
the belonging of this lost work of cultural heritage forms part of both the
artistic subjectivity as well as a communal identity. The aspects of viscosity
and nonlocality in the hyperobjects in particular are discussed further. Case
2 is the so-called Wikimedia Commons case from the Swedish courts and it
deals with artworks in the public sphere. This case shows how the works of
art that exist in public spaces and in the urban commons are entangled
with the digital sphere when they are photographed and uploaded on a
digital platform. Connecting this tendency to the “right to the city” I argue
that the dichotomy between the physical and the intellectual commons is
flawed. The aspect of interobjectivity of the hyperobjects is discussed.
Finally case 3 deals with the New Portrait Series by the artist Richard Prince
and the platform of Instagram. This case shows how the concept of the
“author” in the digital spheres is being dissolved. Discussing the spectra
between that which is traditionally seen as personhood and that which is
seen is property, the argument that is advanced is that this dichotomy
between personhood and property has now collapsed giving rise to the so
called inforg (information carrying organism). The aspect of subjectivity as
lawscape is discussed.
Volume II: Chapter 5 presents and defines the commons as a pheno-
menon. The chapter is divided in three sections: ownership, space and
commons. The ownership section moves topographically from immovable
property thought to immaterial property in order to find openings in the
ownership concepts that can enable the construction of the commons. The
space section moves from “public space” to “subversive property-space” in
order to show that the idea of the commons requires more than a
Habermasian public sphere. The commons section then in the end traces
the genealogy of the commons constructions from resource management
(Ostrom), a relational type of network that includes affects (Hardt/Negri),
and finally arrives at the posthuman definition of the commons as ecology
(Burdon/Morton).
Chapter 6 confronts the concept of the commons with current intellectual
property laws. It demonstrates that the dichotomies of intellectual property
law such as right–privilege, content–carrier, invention–information must be
Another random document with
no related content on Scribd:
 During 1818 Miss Mitford paid another short visit to the Perrys at
Tavistock House in Tavistock Square, evidently arranged with the
idea of keeping their young friend well before the public. “The party
to-day consists of the Duke of Sussex, Lord Erskine, and some
more. I don’t want to dine with them and most sincerely hope we
shall not, for there is no one of literary note; but I am afraid we shall
not be able to get off.” They did not get off, and Miss Mitford “had the
honour of being handed into the dining-room by that royal porpoise,
the Duke of Sussex, who complained much of want of appetite, but
partook of nearly every dish on the table.” Concerning this lack of
appetite, she subsequently wrote to Sir William Elford: “Never surely
did man eat, drink, or swear so much, or talk such bad English. He is
a fine exemplification of the difference between speaking and talking;
for his speeches, except that they are mouthy and wordy and
commonplace, and entirely without ideas, are really not much
amiss.” While on this visit she must have heard from some candid
friend of Mr. Perry’s the following story of Hazlitt’s revenge and, later,
detailed it with great delight—for she dearly loved a joke, even at the
expense of her friends.
Hazlitt had been contributing a series of articles, on the English
Stage, to various newspapers, particularly to the Morning Chronicle,
of which, it will be remembered, Perry was the Editor. Unfortunately
Hazlitt’s “copy” came pouring in at the very height of the
advertisement season, much to Perry’s disgust, who used “to
execrate the d—d fellow’s d—d stuff.” But it was good “copy,”
although the Editor had no idea that its writer was a man of genius,
and having “hired him as you’d hire your footman, turned him off with
as little or less ceremony than you would use in discharging the
aforesaid worthy personage,” because he wrote a masterly but
damaging critique on Sir Thomas Lawrence, one of Perry’s friends.
“Last winter, when his Characters of Shakespeare and his lectures
had brought him into fashion, Mr. Perry remembered him as an old
acquaintance and asked him to dinner, and a large party to meet
him, to hear him talk, and show him off as the lion of the day. The
lion came—smiled and bowed—handed Miss Bentley to the dining-
room—asked Miss Perry to take wine—said once ‘Yes’ and twice
‘No’—and never uttered another word the whole evening. The most
provoking part of this scene was, that he was gracious and polite
past all expression—a perfect pattern of mute elegance—a silent
Lord Chesterfield; and his unlucky host had the misfortune to be very
thoroughly enraged without anything to complain of.”
Reading was a place of great excitement during the year 1818, the
resignation of the Member, Sir John Simeon, necessitating a general
election. This brought Dr. Mitford back from Town post-haste, for he
counted electioneering among his special delights, as we have
previously noted. The occasion furnishes us with one of the few
recorded instances of Mrs. Mitford shaking herself free from the
cares of the household in order to be with and carefully watch her
haphazard spouse. “Papa is going to stay in Reading the whole
election, and mamma is going to take care of him. Very good in her,
isn’t it? But papa does not seem to me at all grateful for this kind
resolution, and mutters—when she is quite out of hearing—
something about ‘petticoat government.’”
The candidate was Fyshe Palmer, who not only won the election
but continued in the representation of Reading for eighteen years.
“He is,” wrote Miss Mitford, “vastly like a mop-stick, or rather, a tall
hop-pole, or an extremely long fishing-rod, or anything that is all
length and no substance; three or four yards of brown thread would
be as like him as anything, if one could contrive to make it stand
upright. He and papa were riding through the town together, and one
of the voters cried out, ‘Fish and Flesh for ever!’ Wit is privileged just
now.”
Mr. Palmer’s wife was the Lady Madelina, a daughter of the Duke
of Gordon, and she and Miss Mitford became very good friends.
Miss Mitford’s anxiety for Palmer’s success was due not so much
because of his politics as for the promise he had given her of
following in the footsteps of his predecessor and keeping her well
supplied with “franks,” if elected. His promise he, doubtless, intended
to keep, but as Miss Mitford despairingly wrote: “he has the worst
fault a franker can have: he is un-come-at-able. One never knows
where to catch him. I don’t believe he is ever two days in a place—
always jiggeting about from one great house to another. And such
strides as he takes, too! Oh! for the good days of poor Sir John
Simeon! He was the franker for me! Stationary as Southampton
Buildings, solid as the doorpost, and legible as the letters on the
brass-plate! I shall never see his fellow.”
Some time after the election, when, indeed, it was a thing
forgotten, Dr. Valpy, the head-master of the Grammar School,
decided to have a Greek play performed by the boys, and to this
function the Mitfords were invited. The play was the Hercules Furens
of Euripides and, of course, Miss Mitford made fun of the whole
performance, especially of the last scene when, to slow music, the
curtain dropped on “Theseus and Hercules in the midst of a hug
which assuredly no Greek poet, painter or sculptor ever dreamt of.
That hug was purely Readingtonian—conceived, born and bred in
the Forbury.” However, the play was well received and became an
annual fixture, with Miss Mitford as the official reporter or, as she put
it, the “official puffer for the Reading paper.”
The year was also notable for the arrival in Reading of Henry Hart
Milman as Vicar of St. Mary’s, and of the Duke of Wellington, who
came in order to look over Strathfieldsaye, Lord Rivers’ estate, some
distance beyond that of the Mitfords along the Basingstoke Road,
which the Nation proposed he should accept as a tribute of its
gratitude. “His Grace comes to look at it sometimes,” wrote Miss
Mitford, “and whirls back the same day. He is a terrible horse-killer.”
Towards the close of the year 1819 the Chancery suit came to an
end. Mr. Elliott—the Doctor’s opponent and a Bond Street
upholsterer—visited Bertram House, saw Dr. Mitford, had a straight
talk with him and, as Miss Mitford recorded, “this long affair of eight
years was settled in eight minutes.”
With the settlement an accomplished fact, the Mitfords began to
look about for an abode of humbler pretentions. London was
suggested and promptly vetoed, as was also the idea of settling in
Reading. Finally they selected a cottage at Three Mile Cross,
situated by the side of the Basingstoke Road and distant about a
mile from their old home. It was a wrench to the ladies to leave
Bertram House, despite the fact that it had been the scene of so
much distress and want. “I shall certainly break my heart when I
leave these old walls and trees,” wrote Miss Mitford, but the blow
was softened by the thought that she would still be able to wander
about the fields and lanes which were so familiar and so dear to her,
and, as was her wont on such occasions, gave vent to her feelings in
a little sonnet:—

“Adieu, beloved and lovely home! Adieu,

Thou pleasant mansion, and ye waters bright,
Ye lawns, ye aged elms, ye shrubberies light
(My own cotemporary trees, that grew
Even with my growth); ye flowers of orient hue,
A long farewell to all! Ere fair to sight
In summer-shine ye bloom with beauty dight,
Your halls we leave for scenes untried and new.
Oh, shades endeared by memory’s magic power,
With strange reluctance from your paths I roam!
But home lives not in lawn, or tree, or flower,
Nor dwells tenacious in one only dome.
Where smiling friends adorn the social hour,
Where they, the dearest are, there will be home.”

Bertram House is a thing of the past, for there is little left of the
building which the Mitfords knew. Another mansion occupies the site,
and only the trees and shrubberies remain as evidence of Dr.
Mitford’s folly; while the name, which marked the Doctor’s proud
descent, has been erased in favour of the older title, Grazeley Court.

FOOTNOTES:
[18] Unfortunately they never received payment for this work,
which was left on their hands, and resulted in a heavy loss.
 CHAPTER XIV

THE COTTAGE AT THREE MILE CROSS

It was during March of the year 1820 that the removal to the cottage
at Three Mile Cross took place. Although it was attended with the
inevitable bustle and discomposure, it could not have been,
according to all accounts, a job of very great difficulty, for most of the
furniture and pictures had been sold—sold at odd times to meet
pressing needs—and there was, therefore, little to convey but the
three members of the family, such books as were left to them,
together with Mossy—the dear old nurse who had shared their
misfortunes right through from the Alresford days—and Lucy the
maid.
 “Our Village” in 1913.
The Village of Three Mile Cross—A general view looking towards Reading.
We can almost picture the scene with the heavy farm-wagon,
broad-wheeled and lumbering, crunching its ponderous way along
the carriage-drive and out through the gates, with some of the dogs
prancing and bounding, now before and now behind, barking at the
unusual sight. Having cleared the gates there would be a turn to the
left, along a short stretch of narrow lane emerging into the road from
the village, where a sharp turn again to the left would take them on
beneath over-arching elms—leafless and gaunt—over a tiny bridge
spanning a tributary of the Loddon, past an occasional cottage
where twitching parlour-blinds would betray the stealthy interest of
the inmates in the passing of the folk from the big house; on until the
road branched, where the right-hand fork would be taken, and so, by
a gentle curve, the wagon would emerge by the side of the George
and Dragon into the Basingstoke Road. And now, with a crack of the
whip—for the last few steps must be performed in good style—the
wagon would sweep once more to the left, where the finger-post, by
the pond opposite, pointed to Reading, and in a moment or two draw
up in the fore-court of the Swan, there to unload into the cottage next
door.
Mossy and Lucy would be waiting to receive the goods, and the
cobbler opposite would watch the proceedings with more than usual
interest, for to him, that night, the village gossips would surely repair
for news, he being so favourably placed for the garnering of it.
While the wagon is being unloaded we will transfer ourselves
again to Bertram House.
The dogs are scampering and scurrying in the undergrowth of the
now neglected shrubbery, chasing leaves which the March winds
scatter crisply. The house is gaunt and cheerless as houses always
are on such occasions. Fitful gleams of watery sunshine streak
through the trees across to the steps down which two sad women
take their slow way. The dogs bound towards them and are greeted
and stroked, the while they curve their sleek and graceful bodies in
an ecstasy of delight.
Along the carriage-drive they walk, with its surface all overgrown
with weeds and marked with the heavy wheels of the wagon, the
tracks of which, deeply cut in the yielding road, they now follow.
Once through the gates they turn for a backward glance of “My own
cotemporary trees” and then a “long farewell to all.” At the end of the
lane they cast one sad look back—there is pain in the eyes of both—
then turning they follow the wheel-marks until the cottage is reached,
the door flies open—for Mossy has been watching for them—and all
that the cobbler sees of their arrival will force him to draw on his
imagination if his inquisitive neighbours are not to be disappointed.

“Your delightful letter, my dear Sir William,” wrote Miss Mitford

shortly afterwards, “arrived at the very moment when kindness was
most needed and most welcome—just as we were leaving our dear
old home to come to this new one. Without being in general very
violently addicted to sentimentality, I was, as you may imagine, a
little grieved to leave the spot where I had passed so many happy
years. The trees, and fields, and sunny hedgerows, however little
distinguished by picturesque beauty, were to me as old friends.
Women have more of this natural feeling than the stronger sex; they
are creatures of home and habit, and ill brook transplanting. We,
however, are not quite transplanted yet—rather, as the gardeners
say, ‘laid by the heels.’ We have only moved to a little village street,
situate on the turnpike road, between Basingstoke and the illustrious
and quarrelsome borough [Reading]. Our residence is a cottage—
no, not a cottage—it does not deserve the name—a messuage or
tenement, such as a little farmer who had made twelve or fourteen
hundred pounds might retire to when he left off business to live on
his means. It consists of a series of closets, the largest of which may
be about eight feet square, which they call parlours and kitchens and
pantries; some of them minus a corner, which has been unnaturally
filched for a chimney; others deficient in half a side, which has been
truncated by the shelving roof. Behind is a garden about the size of a
good drawing-room, with an arbour which is a complete sentry-box
of privet. On one side a public-house, on the other a village shop,
and right opposite a cobbler’s stall.
“Notwithstanding all this, ‘the cabin,’ as Bobadil says, ‘is
convenient.’ It is within reach of my dear old walks; the banks where
I find my violets; the meadows full of cowslips; and the woods where
the wood-sorrel blows. We are all beginning to get settled and
comfortable, and resuming our usual habits. Papa has already had
the satisfaction of setting the neighbourhood to rights by committing
a disorderly person, who was the pest of the Cross, to Bridewell.
Mamma has furbished up an old dairy, and made it into a not
incommodious store room. I have lost my only key, and stuffed the
garden with flowers. It is an excellent lesson of condensation—one
which we all wanted. Great as our merits might be in some points,
we none of us excelled in compression. Mamma’s tidiness was
almost as diffuse as her daughter’s litter. I expect we shall be much
benefited by this squeeze; though at present it sits upon us as
uneasily as tight stays, and is just as awkward looking. Indeed, my
great objection to a small room always was its extreme
unbecomingness to one of my enormity. I really seem to fill it—like a
blackbird in a goldfinch’s cage. The parlour looks all me.”
 Any doubts which the cobbler opposite may have entertained as to
the status of the new arrivals—if, indeed, particulars had not already
filtered through from Grazeley—must have been dispersed by the
Doctor’s action in at once removing the terror of the Cross. More
than this, he had actually suspended the village constable—who was
also the blacksmith—for appearing before him with a blood-stained
head—an unwarrantable offence against the person of the Chairman
of the Reading bench. Three Mile Cross was to be purged;
henceforth, it must behave itself, for a real live magistrate had come
to live in the midst and, until the villagers found that the Doctor’s bark
was worse than his bite they might shake with apprehension—and
“they” included the cobbler who stuck closer to his last and was not
to be tempted to anything more than a knowing wink when the
magistrate and his family came under discussion.
“Borrow a little of the only gift in which I can vie with you—the
elastic spirit of Hope”—wrote Miss Mitford to Mrs. Hofland at this
time, and in that sentence we catch a glimpse of this wonderful
woman who point blank refused to acknowledge a shadow so long
as but one streak of light were vouchsafed to her.
“This place is a mere pied à terre,” she wrote, “till we can suit
ourselves better,” and her one dread was that her father would elect
to live in Reading, to which town she had now taken a sudden and
violent dislike. “Not that I have any quarrel with the town, which, as
Gray said of Cambridge, ‘would be well enough if it were not for the
people’; but those people—their gossiping—their mistiness! Oh! you
can imagine nothing so bad. They are as rusty as old iron, and as
jagged as flints.” By which we may quite properly infer that the affairs
and dwindled fortunes of the Mitfords were being openly discussed.
As a matter of fact, they must at this time have been almost
penniless, with nothing between them and actual want but what they
could obtain by the exertions of the daughter with her pen.
Whatever the original intention of the Doctor may have been as to
the tenure of the cottage, it has to be recorded that it lasted for thirty
years, witnessing the best and most successful of Miss Mitford’s
literary efforts and her short-lived triumph as a dramatist; marking
the gradual decay and death of Mrs. Mitford, and the increasing
selfishness of the Doctor, the results of which, when he died, were
his daughter’s only inheritance.
But, lest we should be accused of painting too gloomy a picture,
let us also joyfully record that it was in this humble cottage and
among the flowers of its garden that there gathered, from time to
time, those truest friends who came from far and near to pay
homage to the brave little woman who found comfort in the simple
things of life, and was happy only when she was permitted to share
her happiness with others.
Despite the pigs which came through the hedge from the Swan
next door and “made sad havoc among my pinks and sweet-peas”;
despite, also, the pump which went dry “from force of habit,” soon
after they were installed, Miss Mitford was not long before she had
“taken root,” as she called it, and begun again her work and her
correspondence.
Haydon, the artist, sent her a picture—his study for the head of St.
Peter—a delicate compliment and, seeing that their walls were so
bare, a seasonable gift. “I am almost ashamed to take a thing of so
much consequence” wrote the pleased recipient; “but you are a very
proud man and are determined to pay me in this magnificent manner
for pleasing myself with the fancy of being in a slight degree useful to
you. Well, I am quite content to be the obliged person.”
Anxious to keep down all needless expenditure we now read of
the “discontinuance of my beloved Morning Chronicle” and of
inability to accept invitations away because of “mamma’s old
complaint in her head” and “papa’s sore throat, which he manages in
the worst possible manner, alternately overdoing it and letting it quite
alone; blistering it by gargling brandy one day, and going out in the
rain and wind all the next; so that, to talk of going out, even to you,
seems out of the question. They really can’t do without me.” On the
other hand, and remembering the mistiness, the rustiness and flinty
nature of the Reading folk, there was the pathetic plea to Sir William
Elford that he should turn aside on his journeys to or from town, to
pay the cottage and its inhabitants a visit. “We shall have both
house-room and heart-room for you, and I depend on seeing you. Do
pray come—you must come and help laugh at our strange shifts and
the curious pieces of finery which our landlord has left for the
adornment of his mansion. Did you ever see a corner cupboard?
Pray come and see us or you will break my heart—and let me know
when you are coming.”
Three months later she wrote:—“I have grown exceedingly fond of
this little place. I love it of all things—have taken root completely—
could be content to live and die here.... My method of doing nothing
seldom varies. Imprimis, I take long walks and get wet through. Item,
I nurse my flowers—sometimes pull up a few, taking them for weeds,
and vice versâ leave the weeds, taking them for flowers. Item, I do a
short job of needlework. Item, I write long letters. Item, I read all
sorts of books, long and short, new and old. Have you a mind for a
list of the most recent? Buckhardt’s Travels in Nubia, Bowdich’s
Mission to Ashantee, Dubois’ Account of India, Morier’s Second
Journey in Persia. All these are quartos of various degrees of
heaviness. There is another of the same class, La Touche’s[19] Life of
Sir Philip Sidney (you set me to reading that by your anecdote of
Queen Elizabeth’s hair). Southey’s Life of Wesley—very good.
Hogg’s Winter Evening Tales—very good indeed (I have a great
affection for the Ettrick Shepherd, have not you?). Diary of an Invalid
—the best account of Italy which I have met with since Forsythe—
much in his manner—I think you would like it. Odeleben’s Campaign
in Saxony—interesting, inasmuch as it concerns Napoleon,
otherwise so-so. The Sketch Book, by Geoffrey Crayon—quite a
curiosity—an American book which is worth reading. Mr. Milman’s
Fall of Jerusalem—a fine poem, though not exactly so fine as the
Quarterly makes out. I thought it much finer when I first read it than I
do now, for it set me to reading Josephus, which I had never had the
grace to open before; and the historian is, in the striking passages,
much grander than the poet, particularly in the account of the
portents and prophecies before the Fall. These books, together with
a few Italian things—especially the Lettere di Ortes—will pretty well
account for my time since I wrote last, and convince you of the
perfect solitude, which gives me time to indulge so much in the
delightful idleness of reading.”
 The anecdote of Queen Elizabeth’s hair to which Miss Mitford
alludes in the preceding letter, was one of which Sir William wrote in
the previous April. It was to the effect that two ladies of his
acquaintance had just paid a visit to Lord Pembroke’s family at
Wilton, and whilst there one of them desired to see the Countess of
Pembroke’s Arcadie when, in perusing it, she discovered, between
two of the leaves, a long lock of yellow hair, folded in an envelope in
which was written, in Sir Philip Sidney’s handwriting, a declaration
that the lock was “The faire Queen Elizabeth’s hair,” given him by her
Majesty. In recounting this anecdote to Mrs. Hofland, Miss Mitford
remarked that “the miraculous part of the story is, that at Wilton,
amongst her own descendants, the Arcadia should be so completely
a dead letter. I suppose it was snugly ensconced between some of
Sir Philip’s Sapphics or Dactylics, which are, to be sure, most
unreadable things.”
But, apart from this “idleness of reading,” Miss Mitford was busily
gathering material for her articles in the Lady’s Magazine, roaming
the countryside for colour. “I have already been cowslipping” she
wrote. “Are you fond of field flowers? They are my passion—even
more, I think, than greyhounds or books. This country is eminently
flowery. Besides all the variously-tinted primroses and violets in
singular profusion, we have all sorts of orchises and arums; the
delicate wood anemone; the still more delicate wood-sorrel, with its
lovely purple veins meandering over the white drooping flower; the
field-tulip, with its rich chequer-work of lilac and crimson, and the sun
shining through the leaves as through old painted glass; the ghostly
field star of Bethlehem—that rare and ghost-like flower; wild lilies of
the valley; and the other day I found a field completely surrounded
by wild periwinkles. They ran along the hedge for nearly a quarter of
a mile; to say nothing of the sculptural beauty of the white water-lily
and the golden clusters of the golden ranunculus. Yes, this is really a
country of flowers, and so beautiful just now that there is no making
up one’s mind to leave it.”

FOOTNOTES:
[19] Probably Miss Mitford meant T. Zouch’s Memoirs of Sir Philip
Sidney, published in 1809.
 CHAPTER XV

A BUSY WOMAN

This first year in the cottage at Three Mile Cross was spent in a
variety of ways by Miss Mitford. In addition to her reading, she was
devoting herself to getting the garden into trim and by taking
extended walks in the neighbourhood, particularly in exploring that
beautiful “Woodcock Lane”—happily still preserved and, possibly,
more beautiful than in Miss Mitford’s day—so called, “not after the
migratory bird so dear to sportsman and to epicure, but from the
name of a family, who, three centuries ago, owned the old manor-
house, a part of which still adjoins it.” A delightful picture of this lane,
full of the happiest and tenderest memories, is to be found in Miss
Mitford’s Recollections of a Literary Life. It is too long for quotation
here, but for its truth to Nature we can testify, for we have ourselves
wandered down its shady length, book in hand, marking and noting
the passages as this and that point of view was described, and
looking away over the fields as she must have looked—somewhat
wistfully, we may believe—to where the smoke from the chimneys at
Grazeley Court curled upwards from the trees which so effectually
hide the building itself from view. While on these walks,
accompanied by Fanchon, the greyhound and Flush, the spaniel,
she would take her unspillable ink-bottle and writing materials and,
resting awhile beneath the great trees, write of Nature as she saw it,
spread there before her. Here, undoubtedly, she wrote many of those
pictures of rural life and scenery which, at present, form the most
lasting memorial of her life and work.
 Woodcock Lane, Three Mile Cross.

The monotony—if there could be monotony in such labour—was

broken by a short, three-day’s holiday at Richmond and London
which gave her a fund of incident wherewith to amuse her friend Sir
William in lengthy letters. Of the sights she missed, two were the
pictures of Queen Caroline and Mrs. Opie, “that excellent and
ridiculous person, who is now placed in Bond Street (where she can’t
even hear herself talk) with a blue hat and feathers on her head, a
low gown without a tucker, and ringlets hanging down each shoulder.
The first I don’t care if I never see at all; for be it known to you, my
dear friend, that I am no Queen’s woman, whatever my party may
be. I have no toleration for an indecorous woman, and am
exceedingly scandalized at the quantity of nonsense which has been
talked in her defence. It is no small part of her guilt, or her folly, that
her arrival has turned conversation into a channel of scandal and
detraction on either side, which, if it continue, threatens to injure the
taste, the purity, the moral character of the nation. Don’t you agree
with me?
“I heard very little literary news. Everybody is talking of ‘Marcian
Colonna,’ Barry Cornwall’s new poem. Now ‘Barry Cornwall’ is an
alias. The poet’s real name is Procter, a young attorney, who feared
it might hurt his practice if he were known to follow this ‘idle trade.’ It
has, however, become very generally known, and poor Mr. Procter is
terribly embarrassed with his false name. He neither knows how to
keep it on or throw it up. By whatever appellation he chooses to be
called, he is a great poet. Poor John Keats is dying of the Quarterly
Review. This is a sad, silly thing; but it is true. A young, delicate,
imaginative boy—that withering article fell upon him like an east
wind. Mr. Gifford’s behaviour is very bad. He sent word that if he
wrote again his poem should be properly reviewed, which was
admitting the falsity of his first critique, and yet says that he has been
Keats’ best friend, because somebody sent him twenty-five pounds
to console him for the injustice of the Quarterly.”
Interspersed with these letters to Sir William were many kindly,
womanly epistles to Mrs. Hofland and particularly to the painter,
Haydon, who, poor man, was always having a quarrel with
somebody; sometimes with the Academy and sometimes with his
patrons. True to her sex, Miss Mitford was ever on the side of what
she considered were the weak and down-trodden, and in this class
she placed her friend Haydon. “Never apologize to me for talking of
yourself,” she wrote to him; “it is a compliment of the highest kind. It
tells me that you confide in my sympathy.”
In November public festivities to celebrate Queen Caroline’s
acquittal were held, and Three Mile Cross, not to be outdone in
demonstrative sympathy, decided to illuminate. “Think of that! an
illumination at Three Mile Cross! We were forced to illuminate.
Forced to put up two dozen of candles upon pain of pelting and
rioting and all manner of bad things. So we did. We were very
shabby though, compared with our neighbours. One, a retired
publican, just below, had a fine transparency, composed of a pocket
handkerchief with the Queen’s head upon it—a very fine head in a
hat and feathers cocked very knowingly on one side. I did not go to
Reading; the squibbery there was too much to encounter; and they
had only one good hit throughout the whole of that illustrious town. A
poor man had a whole-length transparency of the Duke of Wellington
saved from the Peace illumination, and, not knowing what to get
now, he, as a matter of economy, hung up the noble Duke again
topsy-turvy, heel upwards—a mixture of drollery and savingness
which took my fancy much. And, certainly, bad as she is, the Queen
has contrived to trip the heels of the Ministers.”
As the year progressed, Miss Mitford made another attempt at
dramatic work, devoting her energies to a tragedy on the subject of
Fiesco, the Genoese nobleman who conspired against Doria. The
idea of a play written on this theme had originated during her recent
short visit to London, where she had witnessed an “indifferent
tragedy, of which the indifferent success brought the author three or
four hundred pounds.” Schiller had, it will be remembered, already
used the subject, but this did not deter our author from trying her
‘prentice hand on it. When it was finished—she had worked very
assiduously—it was sent off to her friend Talfourd for his advice and
criticism, and in the hope that should he approve it, he would be able
to negotiate for its production at one of the theatres. To Haydon she
wrote confiding her fears and hopes. “It is terribly feeble and
womanish, of course—wants breadth—wants passion—and has
nothing to redeem its faults but a little poetry and some merit, they
say, in the dialogue. My anxiety is not of vanity. It is not fame or
praise that I want, but the power of assisting my dearest and kindest
father.” Talfourd, most anxious to be of service to his little friend—
most anxious because he knew much of the sad tragedy of the last
few years—managed to secure the interest of Macready, the actor,
who promised to consider the manuscript.
Macready’s letter to Talfourd, transcribed for the edification of Sir
William Elford, is important inasmuch as it affords some idea of that
actor’s readiness, at all times, to help any struggling author who
might appeal to him. He never forgot his own early struggles and his
fellow-feeling towards others in desperate plight made him wondrous
kind. “Mr. Macready wrote the other day to my friend and his friend
[Talfourd] who gave him my play, and this mutual friend copied his
letter for my edification. It was, in the first place, the prettiest letter I
ever read in my life—thoroughly careless, simple, unpresuming—
showing great diffidence of his own judgment, the readiest good-
nature, the kindest and most candid desire to be pleased—quite the
letter of a scholar and a gentleman, and not the least like that of an
actor. As far as regarded my tragedy, it contained much good
criticism. Mr. Macready thinks—and he is right—that there is too little
of striking incident, and too little fluctuation. Indeed, I have made my
Fiesco as virtuous and as fortunate as Sir Charles Grandison, and
he goes about prôné by everybody and setting everybody to rights
much in the same style with that worthy gentleman, only that he has
one wife instead of two mistresses. Nevertheless, the dialogue,
which is my strong part, has somehow ‘put salt upon Mr. Macready’s
tail,’ so that he is in a very unhappy state of doubt about it, and
cannot make up his mind one way or the other. The only thing upon
which he was decided was that the handwriting was illegible, and
that it must be copied for presentment to the managers. This has
been done accordingly, and Mr. Macready and they will now do
exactly what they like.”
The consideration of the manuscript was prolonged, and it was not
until the midsummer of the following year (1821), that it was finally
returned on its author’s hands as unsuitable. Meanwhile, her friends
in London had been busy in her interest and she was now working
“as hard as a lawyer’s clerk” in writing for the magazines—poetry,
criticism, and dramatic sketches. Confessing to a “natural loathing of
pen and ink which that sort of drudgery cannot fail to inspire,” she
mentions that she now has no leisure, “scarcely a moment to spare,
even for the violets and primroses.” The necessity for polish was
impressed upon her. “You would laugh if you saw me puzzling over
my prose. You have no notion how much difficulty I find in writing
anything at all readable. One cause of this is, my having been so
egregious a letter-writer. I have accustomed myself to a certain
careless sauciness, a fluent incorrectness, which passed very well
with indulgent friends, such as yourself, my dear Sir William, but will
not do at all for that tremendous correspondent, the Public. So I
ponder over every phrase, disjoint every sentence, and finally
produce such lumps of awkwardness, that I really expect, instead of
paying me for them, Mr. Colburn and Mr. Baldwin will send me back
the trash. But I will improve.... I am now occupied in dramatic
sketches for Baldwin’s Magazine—slight stories of about one act,
developed in fanciful dialogue of loose blank verse. If Mr. Baldwin
will accept a series of such articles they will be not merely extremely
advantageous to me in a pecuniary point of view (for the pay is well
up—they give fifteen guineas a sheet), but excellent exercises for my
tragedies. At the same time I confess to you that nothing seems to
me so tiresome and unsatisfactory as writing poetry. Ah! how much
better I like working flounces! There, when one had done a pattern,
one was sure that one had got on, and had the comfort of admiring
one’s work and exulting in one’s industry all the time that one was, in
fact, indulging in the most comfortable indolence. Well! courage,
Missy Mitford! (as Blackwood’s Magazine has the impudence to call
me!) Courage, mon amie!”
Nothing daunted by the failure of Fiesco, and notwithstanding the
pressure of work for the magazines, Miss Mitford was devoting all
the time she could spare to a fresh tragedy, the subject this time
being the Venetian Doge Foscari. The project was submitted to
Talfourd’s judgment and approved, and by October the finished play
was in his hands for presentation to the managers. As ill luck would
have it, Byron had been working quietly at a play on the identical
subject, and his was announced on the very day that Miss Mitford’s
Foscari was to be handed to a manager for his perusal. “I am so
distressed at the idea of a competition,” she wrote; “not merely with
his lordship’s talents, but with his great name; and the strange awe
in which he holds people; and the terrible scoffs and sneers in which
he indulges himself; that I have written to Mr. Talfourd requesting him
to consult another friend on the propriety of entirely suppressing my
play—and I heartily wish he may. If it be sent back to me unoffered, I
shall immediately begin another play on some German story.”
Talfourd decided that the play should take its chance, and in
December had the satisfaction of hearing that Macready, who had
read it, had passed it on to the manager with a strong
recommendation that it be accepted. In the construction of the play
and the development of the characters, Miss Mitford had been
guided by the assumption that, in the event of its being accepted the
actors Kemble, Young and Macready would take the leading parts.
Unfortunately, however, a little dissension between these actors just
at the critical moment, led to the secession of Charles Kemble and to
hesitancy in the case of Young, with the result that Macready was
the only one left to fulfil the author’s original purpose. The tragedy
represented much hard work, for Macready was, very properly, an
extremely critical man and before he would agree to submit the play,
had asked its author to revise one of the acts at least three times—
which she did, without demur.
Late in December of that same year she received an intimation
that the play was rejected. It was a heavy blow, for, although she had
half expected it from the outset, the prolonged negotiations had led
her to hope that her fears would not be realized; and, she was
counting much on the pecuniary advantages of its production.
Talfourd softened the blow in his own kindly way. He wrote:—“I have
with great difficulty screwed myself up to the point of informing you
that all our hopes are, for the present, cruelly blighted. Foscari has
been returned by Mr. Harris to Mr. Macready, with a note, of which
the following is an exact copy:—
‘My dear Sir,—I return you the tragedy of Foscari, and it is with
regret that I am obliged to express an opinion that it would not
succeed in representation. The style is admirably pure and chaste,
and some of the scenes would be highly effective; yet as a whole it
would be found wanting in that scale by which the public weigh our
performances of the first class. Should the ingenious author at any
time bestow the labour of revision and alteration on the tragedy, I
should be most happy to have a reperusal of it—Ever yours, H.
Harris.’ I am quite sickened at this result of all your labours and
anxieties. The only consolation I can offer is, that Mr. Macready
assures me he never knew a refusal which came so near an
acceptance; for Harris has spoken to him in even higher terms of
eulogy than he has written; and I have seen another letter of
Harris’s, about other plays, in which he puts Foscari far above all
others that he has rejected, and in point of style and writing, above
one of Shiel’s [Richard Lalor Sheil] that is to be acted. You see, he
holds open a prospect of its being reconsidered, if altered. Whether
you will adopt this suggestion is for your own decision; but certainly
this play has quite prepared the way for most respectful attention to
any piece you may send in hereafter.”