Title: ‘Except where herein otherwise directed’ - Building with legal documents in early 19th century England Name: Tilo Amhoff Address: 93 Kingsgate Road, NW6 4 JY London, UK Email: t.amhoff@ucl.ac.uk Telephone: +44 (0)79 0668 4479 Abstract: This paper investigates the changes in architectural practice following the introduction of contracting in gross in early 19th century England, emphasising the role of legal documents in building. Word count: 4992 words Biography: Tilo Amhoff is Lecturer in Architecture History and Theory at the University of Brighton and PhD candidate and teaching fellow at the Bartlett School of Architecture. His PhD research looks at the notion of the plan in 19th and 20th century Germany. He is a founder member of Netzwerk Architekturwissenschaft. Acknowledgments: This paper is based on my ‘Adapting the architect’s products to capitalist building production. The development of legal obligations, building specifications and working drawings in the first half of the 19th century in England’ (unpublished master’s thesis, University College London, The Bartlett School of Architecture, 2004). I would like to thank my supervisor Professor Adrian Forty for his careful and patient support in the development of this research project, Katie Lloyd Thomas for her interest in my work, and both for their encouragement to do something with it. “To show every minute portion of a building by drawing is next to impossible, and would be more laborious than useful, and therefore description in writing is resorted to, by which much labour is saved, and the intentions of the architect more readily conveyed to the mind of the operative.”i Introduction This paper investigates the changes in architectural practice following the introduction of contracting in gross for the execution of building work in early 19th century England. This particular new form referred to two different agreements, either contracting for a whole undertaking by a single builder who agreed to erect the whole of an edifice at a predetermined price and time, or contracting for the work of a specific trade only.ii The changes in contracting the building work are understood as changes in building practice, whose material product would be the building. In a similar manner the building contracts are considered as the material products of the architectural practice, including not only the working drawings, but also the legal obligations and building specifications. The paper investigates the contract documents that were to be produced in the office in order to build on site as evidence for a response of architectural practice to the changes in building practice. It traces this process in the adaptation of the writings of the legal documents to contracting in gross by comparing the specifications of John Soane’s building contract for Tendring Hall of 1784 with the instructions and model specifications of the early 19th century handbooks and practical guides. The paper further establishes a relationship between the conditions that this form of contracting set for the production of architecture and building and the methods of describing and defining a project in advance. The specific interest is in the role of these legal paper documents in the building process and the way they established, formed or transformed the social relations of building production. The emphasis will be on the writing strategies of the building specifications. While their general history is relatively well known, their methods and their exact language needs to be discussed in more detail.iii From building by measure to contracting in gross It is commonly agreed that the rise of the general contractor together with contracting in gross and competitive tendering were the reasons for the proliferation of building documents and practical literature instructing and describing good practice in early 19th century England.iv In contrast to building by measure, in which the costs of the building were calculated by measure after its completion, contracting in gross wanted to guarantee a fixed price for the whole undertaking in advance; allowing the client to control the expenditure of construction, the contractor to make a profit, and requiring the trades to compete for work. In England the first to apply contracting in gross was the Barrack Department under the Direction of the Ordnance Office for the erection of their Cavalry Barracks during the Napoleonic Wars (17931815). After arrears of more than seven years in the accounts of the department and the following Military Enquiry (1806-1816) contracting in gross was introduced in order to correct and prevent any abuse and irregularities, and for the better conducting and managing of its business. During the general examination of the Parliament into the public expenditure and the administration of public businesses a second enquiry, this time investigating the Office of Works (1812-1828), was initiated. The reasoning was much the same, the extreme disorder in the accounts of the office and the 1 ambition to better control the spending of public money. The same commissioners came to the conclusion: “that the method which appears the most prudent and economical for individuals to adopt could not prove disadvantageous to the Public; and they are therefore inclined to think, that (…) the system of contracts in gross might be found to be the least expensive.”v Therefore contracting in gross began to be employed in the execution of building work by the Office of Works. This was part of an ongoing economical reform of public businesses in England, starting in the late 18th century and introducing the principles of trade into its conduct. As a consequences of contracting in gross the whole project needed to be set out in advance. This was done by means of new forms of contract documents. The architect’s response to contracting in gross, as evidenced in the two parliamentary enquiries and in the contemporary literature, was a mixed one. On the one hand the new contracting system was held responsible for the decline in the quality of building. The most cited reasons were competitive tendering, leading to the employment of unknown builders, the use of cheap labour and materials to increase the margins, and the fact that no architect could sufficiently describe a building project in advance, either in drawing or in writing. At the same time they were engaging with this new form of production. But while the main concern of this type of contract were the costs, and the need to set out everything in advance was driven by that requirement, the architect’s concern was with the quality of building. In this new context they saw quality as the exact execution of the documents of the building contract or the intentions of the writers of it. The legal documents were hence understood as the means to ensure quality. In that respect better specifications meant better building. The wide range of technical literature, from manuals, handbooks, and directors, to the practical guides for writing building specifications is evidence of that. The writing methods of the building specifications In mid 19th century England various architects were concerned with the writing of guides, directors, handbooks, and other practical building manuals. Well-known examples are Alfred Bartholomew’s Specifications for Practical Architecture (1841), Thomas Larkin Walker’s An Essay on Architectural Practice (1841), and Thomas Leverton Donaldson’s Handbook of Specifications (1859). Among other things it was their ambition to instruct the writing of specifications that would not allow the imagination to be exercised, was not ambiguous, and could not be mistaken in execution. Bartholomew for instance described his motivation for writing such a guide as follows: “When more than twenty years ago, I began this description of technical literature, I found generally prevalent in it a course style of vagueness, which though itself little imaginative, left ample room upon a thousand points for Builders to exercise imagination as to the intentions of the writer of it.”vi But can this really be traced in the written specifications? What I suggest is a comparative reading of an older specification I identified, John Soane’s particulars for Tendring Hall of 1784, and the model 2 specifications of Bartholomew’s guide of 1841, in order to see in which way imagination could have been exercised and the attempts to prevent this.vii The investigation of the writing methods of the published building specifications will be drawing our attention to some of their contradictions and predicaments. In the first instance more general observations can be made; such as the proliferation of the number of building documents contained within one contract describing the building in ever more detail, the change from a description of the building to a description for building, and also the inclusion of the conditions of building as a general clause at the start or end of the specifications for the individual trades.viii In a second instance more detailed observations, such as the variety of writing methods for preventing the imagination to be exercised, can be made. One method was the inclusion of dimensions in the written specifications, making a change from the vagueness and openness of words such as ‘sufficiently’ to the accurateness of dimensions, from the experience of the workman to the execution of the documents. Soane (1784) could still specify “to build the chimneys and to raise the shafts sufficiently above the roofing”, relying on the experience and expertise of the workman. In contrast Bartholomew (1841) instructed to write: “To put to each fire-place a 4-inch brick trimmer and a chimney bar of wrought iron ½ inch by 2 ½ inches, 18 inches longer than the chimney opening, and properly corked at the ends.” He was demanding the exact execution of the dimensions of the document. Both, the particulars and the guide, employ the method of inclusion and exclusion. While on the one hand the specifications were expected to be clear and simple they also needed to be comprehensive on the other hand. The first ambition required the reduction of technical expressions. In contrast the second advocated the inclusion or exclusion of every possible detail. But this seems like contradicting ambitions. To me at least it is not obvious if Soane’s (1784) specification of bricks as “perfectly sound and well burnt, and no samel or soft bricks” is less or more clear, is less ore more ambiguous then Bartholomew’s (1841) specification of all bricks as “to be the very best new approved, hard-burnt, square grey-stock bricks, free from breakage, and from all admixture of soft bricks, place-bricks, or other inferior bricks.” One of the last resorts in the language of the specifications was the use of superlative. From Soane’s (1784) “completed and finished in a good substantial and workmanlike manner and with good and sound materials of all sorts” to Bartholomew’s (1841) “to execute in the very best and in the most workmanlike manner” and “all the bricks are to be the very best new approved”. But where would one go from there? Would it make the building better when specifying materials and workmanship as ‘the absolutely very best’? The legal documents of the building contract Contracts in gross were meant to consist of three distinct legal documents; legal obligations, building specifications, and working drawings. Each one described and defined the building and its execution in a unique way, using different cultural techniques such as writing, drawing or numbering. At the same time the individual documents contained references to each other. The specifications for instance referred to the drawings according to which the work was to be executed. 3 The legal obligations determined the general conditions of the building contract. They were inserted as general clause at the beginning or end of a contract, repeating the conditions for each individual part of the agreement. The lines of the working drawings represented the general layout of the project, and the words of the building specifications described in writing the characteristics of the materials to be used and nature of the work to be done. The numbers in both of them gave the accurate dimensions of the building. The building specifications and working drawings were directly related to each other, or as Thomas Larkin Walker the writer of the guide on best practice in drawing, considered by himself as a supplement to Alfred Bartholomew’s guide on specifications, put it: “The drawings and specifications are considered mutually explanatory to each other.”ix Sometimes the building specifications would even double the working drawings, when for instance the project defined by lines in the drawing would again be described in words, using methods of pictorial description and concrete dimensions. But in general they would complement each other, describing in writing what could not be shown in drawing and vies versa. The white spaces of each document were to be filled by the descriptions of the other element of the building contract. Although it was only the combination of all the legal documents that fully described the architectural project before its execution, the elements of the building contract were distinct. The specific cultural techniques were rarely mixed. There were exceptions, when drawings contained descriptions of the materials to be used and instructions for the execution of the work, or the specifications contained drawings of the project, but as general rule there was no writing on drawings and no drawing in writings. As a consequence it was only the full set of legal documents that was considered able to describe the project completely. This was sometimes also reflected in their material nature when they were bound into one booklet for the building contract. The materiality of legal documents was a prerequisite for giving any information, evidence or proof in writing or drawing and therefore the very concrete base of their becoming a document. This would allow them to be fixed, approved and authorized, as well as to travel between the different sites of production, between the architectural office and the building site. The paper documents were able to mediate the exchange of knowledge, to communicate over a distance and in the absence of the architect. The nature of the legal documents According to James Elmes, the editor of the first collection of cases connected with the jurisprudence of building A practical treatise on Architectural Jurisprudence (1829), a “contract, contractus, Latin, is an agreement or covenant between two or more persons, with a lawful consideration or cause.”x The building contracts were agreed between the client, the builder, and the architect. The architect had to provide all the legal documents of the contract, the builder had to agree to perform according to these documents, and the client to confirm to pay the agreed sum. The contract defined the project, the price for the whole undertaking, and the time when the building was to be finished. More importantly we have to keep in mind that the contract was an agreement and not only a pure instruction, meaning that it was imposing reciprocal obligations. According to Glen W. Cunningham, the contemporaneous authority on architectural jurisprudence and author of The law in relation to the legal liabilities of engineers, architects, contractors, and builders (1868), a “contract or agreement 4 is composed of two parts, imposing reciprocal obligations upon each of the parties to it in order to compel each to perform his part of the agreement; and it imports two considerations, that is to say, the performance of the agreement on either side is the consideration for the performance of the agreement on the other side.”xi In that respect the building contract was not one directional, and therefore cannot be understood as a mere instruction, imposing requirements to one side of the agreement only, the builder for instance. But it has to be interpreted as an agreement that was simultaneously imposing obligations on all parties involved, including the architect and the client, and that also lost its validation or stopped imposing obligations the moment one side stopped performing their part of the agreement. The documents of the contract described and defined the building prior to its realization. They were used for bills of quantity, instructions to workmen, and also served as legal documents, and in that respect were accounts of and for building; a bill, a description, and a contract. The documents were the basis for costing, and been used by the quantity surveyor for calculating the costs of materials and labour. They were specifications of and for building, describing the materials to be used and work to be executed, as well as contract documents, written in the language of law, whose words had different consequences. They could be accounted for. The contract documents could be interpreted as operating in the different frameworks of accounting, building, and law. A better understanding of the nature of a building contract and the requirements of its legal documents will allow us to clarify the nature of the descriptions of buildings and their execution. It was for instance necessary that, “all contracts or agreements made between the guardians and any other person or persons relating to any act, matter, or thing, to be done in pursuance of that act, should be reduced into writing and signed by the parties thereto.”xii While the nature of the building contracts would demand the translation of the object and process of building into writing, we know that building descriptions were not only in writing but also in drawing, since the building and its execution was as much represented by lines as in words. In the context of building contracts they would also be exposed to and understood in the nature of legal documents. The terms of the contract for instance “need not, (…), be necessarily expressed in words; for if they be clearly set out in a plan or drawing, signed by the architect, (…), such would be considered as much an order in writing as if the whole of the details had been specified in words at length.”xiii Since the logic of the legal documents requires the reduction of building to information on paper, which can be given in different cultural techniques, drawn descriptions could become as much a legal document as written ones. A signature would turn all building descriptions, from the legal obligations, building specifications, to the working drawing into legal documents, part of the building contract and agreements that could be enforced by a lawyer in front of a court. “That if terms be reduced to writing and a man says that he will abide by those terms, and will sign the agreement; that is what the case amount to as an authority,”xiv So in addition to Brian Hanson’s argument in Architects and the Building World the authority of the architect in building production was not only constructed through new working methods, but was actually established through the signature and the consequent insertion of the documents of the building contracts into a legal framework.xv 5 The social relations of building production For Linda Clarke a qualitative change in the social relations of building production occurred with the end of artisan production and the beginning of contracting in gross, when by the 19th century the contractor replaced the master and the wage labourer the journeyman. In Building Capitalism she traces the change from feudalist to capitalist mode of production, from the division of labour in artisan production to the social contradiction between labour and capital in contracting. In her analysis of the process of urbanization she identifies the changes from building by measure to contracting in gross as part of the transformations described above. She demonstrates that with the new mode of production the role of all parties involved in building also changed, from the measurer to the quantity surveyor for instance. She also notes the emergence of the architect as designer of buildings as commodities.xvi In the chapter on the fetishism of commodities Karl Marx describes in Capital how labour assumes a social form the moment men begin to work for one another. But according to him the relations of the producers are not presented to them as social relations between themselves, but assume a fantastic form, namely that of a relation between the products of their labour. For Marx “the relations connecting the labour of one individual with that of the rest appear, not as direct social relations between individuals at work, but as what they are, material relations between persons and social relations between things.”xvii This mirrors the architects complaints about contracting in gross, who were mourning the loss of the personal relations with the familiar people in building production, such as the patron and the builder, and expressing their doubts and anxieties about building with an unknown builder, or as they said, “a builder of unknown character”. Contracting in gross and the process of competitive tendering would introduce building to the logic of the market economy of capitalism. As one consequence the social relations of building production would gradually change. The tradesmen employed were no longer those well known, with the most experience or best reputation, but the ones with the lowest bid, marking the beginning of what could be called material relations between architect, client, and builder; that could also be described as professional and economic relations between parties. It was also the particular legal nature of the building contracts that would turn the personal relations between individuals into professional relations between parties; entering into a contract a person would become a legal entity. In that respect contracting in gross established a particular kind of relation between the parties involved, that of an agreement imposing reciprocal obligations, separating between design and execution, and laying out the terms of the co-operation. For Marx the co-operation of a greater number of wage labourers in the manufacture and the factory for the production of a commodity under the leadership of a capitalist constituted the starting point of capitalist production. Clarke has shown that a similar process can be observed with the rise of the general contractor in building production and the changes in social relations that followed. For Marx these relations appear yet again in another form. “The connexion existing between their various labours appears to them, ideally, in the shape of a preconceived plan of the capitalist.”xviii According to him it was only the capitalist who had a preconceived idea and also interest in their cooperation, being the one who had an overview. In that respect it is important to note that the totality 6 of all contractual documents was also sometimes called a plan, such as John Soane’s ‘The Plan of the new intended Mansion House’ (Tendring Hall, 1784). For Marx the co-operative character of the labour process demanded the necessity for control, for a direct and constant supervision of the individual workman, executed by a special kind of wage labourer. The new role of the architect within contracting in gross could also be understood as that of the maker of plans in that sense, connecting the various labours, and supervising their execution. In contrast to Clarke my interest is therefore not primarily in the relations between capital and labour, but between the architect and the workman. My evidence for their social relation comes from the products of the offices, from the legal paper documents of the building contracts, which established the relations of the parties involved. In addition to her I would like to demonstrate that it was not only the social relations between the people involved in building production and their individual roles that changed, but that also other actors in the form of legal documents intervened and substituted for people and labour. If we take the architects responses to contracting in gross seriously then we will have to notice that one of the most common and serious concern was the anxieties of building with a stranger, and the uncertainty of their character. Because of the unknown character that could no longer be trusted, at least according to the architect’s point of view, the legal documents of the building contract became ever more important. They were meant to compensate for the lack of trust, to prevent any abuse or misconduct, and to secure the execution of the project to the satisfaction of the architect’s intention. The function of the legal documents in building production Contracting in gross altered the way of building from a process where the details of the construction were set out while a building was still in progress, very often done by the workmen of the individual trades, to one where a minute description of every aspect of the project had to be prepared by the architects in advance of the execution of the work. There were two main reasons for the production of comprehensive building descriptions in advance. The first was the demand to calculate the exact price of building before its execution for contracting in gross and the second the desire of architects to ensure the quality of building with this new mode of production. Since the contractor had agreed to a fixed price and the execution of the contracted work these descriptions were to be as accurate and comprehensive as possible. Every detail of the project, its materials and the different types of labour were to be known in order to be included in the calculation of the costs. This was the more economic reason for the comprehensive building descriptions and the intended direct and concrete consequence of the new contracting system. On the other hand the architects also expected that their products would prevent bad workmanship and the decline in the quality of building. Therefore some of them were occupied with providing all the necessary information for adapting the architectural practice to contracting in gross in their practical manuals mentioned above. It is evident that the architects needed to gain a lot of the traditional knowledge of the workmen in order to prepare all the details for the execution of the work, formerly done by the individual trades. With the transfer of responsibilities in building came also a transfer of knowledge. Much of the workman’s expertise was being transcribed in the building manuals and their skills externally codified by the writings and drawings of the contract documents. 7 An embodied knowledge would become a discursive knowledge, prepared for a professional practice. As a consequence the architects would have to gain more knowledge about building, something that they might have left to the builder before, a builder that they would of course still trust. One could observe a shift from an architectural practice that was largely based on personal relations and speech, to the practice based on professional relations and writing, a change from the trust and reputation of the workman to the stringency of legal contracts, from the actual work on the building site to the work in the architectural office, and from spending days or even weeks at the country seat of the client to distant communication by means of legal documents. The nature of contracts and the character of their distinct elements as legal documents was becoming ever more prevalent by the 19th century. The problem of the uncertain character of the workman and the complaints about the decline of excellence in English building were of course linked. With the anonymity of the competitive process came the regime of the cheapest price and with it the demand to employ cheap labour and cheap materials. This would replace the regime of a good reputation, honour and integrity for the quality of work. The loss of personal relations within the building practice and the beginning of material relations, forced the architects to become professionals within the development of this particular economy. They were faced with the necessity of adopting their way of producing architecture, the predominant site of production becoming the office. The investigated practical manuals for example instructed the architects how their products were to be developed in order to be able to build within this new economic system. Conclusion Despite the model specifications attempts for clarity, comprehension, and little room for imagination they had to operate within the confinements of language. And as I have hoped to show with the short examples at the beginning of the paper these limitations were not only a question of the quality of the writing but of the capacity of writing itself. And that is not yet to talk about the complications of reading them. With the help of these minute descriptions of every aspect of the project the architects expected to compensate for the loss of confidence in the quality of workmanship. But the writing of building specifications without ambiguity was not only driven by the desire for the quality of building, but also fuelled by an anxiety about the new professional relations, about the unknown builder, and by economic realities based on competition. These were only just further enhanced by an anxiety about an observed inability to describe everything in advance and the limitations of language. As argued above the legal building documents constituted the architect’s authority on the building site and substituted for its voice and presence at the same time. It can be observed that the legal obligations and building specifications were therefore often written as direct verbal requests or instructions for the execution of work. It was John Gelder who noted in Specifying Architecture that two groups, the literate and illiterate people were both building. He further explained that the illiterate were relying on oral description and tradition, while the literate were using written descriptions and innovation. By the 19th century the second form was displacing the first. Since then 8 the legal documents became an ever more important in building production, and as a consequence was their production.xix The legal obligations, building specifications and working drawings became the material products of architectural practice, prepared in the site of the architectural production, the architectural office, in order to build on the site of capitalist building production. The central position of the architects within the process of preparation, exchange and execution of legal paper documents and the set up of their products in the document based building practice, so I would like to argue, provided the key in the establishment of their professional architectural practice.xx As I have hoped to have demonstrated it was the change in building production and the changes in the social relations which followed, from social to material relations, and the question of the unknown character of the builder, that established the centrality of legal documents in building production. But it seems that architects were merely making a virtue out of necessity when they began to engage with the question of the quality of the contract documents. While traditionally being more interested in design they had to address the new realities of building. In that respect even the procedure that was originally held responsible for the decline in building and that was motivated by the question of controlling the costs of building, namely the comprehensive and correct contract documents, was used and understood by architects as means to ensure the execution of the original design. But more then that the legal documents, so I would like to argue, operated as a substitute for the architect on site. While Soane (1784) could still specify “as shall be directed”, indicating further directions, most likely verbal instructions and outside the contract document, Bartholomew (1841) would demand to write “except where herein otherwise directed”, immediately referring back to the documents in question, eradicating any possibility of an outside. It were the legal documents that were supposed to direct the building process. i Thomas Larkin Walker, An Essay on Architectural Practice, being an attempt to supply a guide for students at their first entrance on the practice of architecture as a profession, (London: R.A. Sprigg, 1841), p. 4. ii The best account is still E. W. Cooney, ‘The Origins of the Victorian Master Builders’, in The Economic History Review, Vol. 8, No. 2, (1955), pp. 167-176. iii In working drawings outline was recommended over shadows, and dimensions over scale drawings. All work was to be clearly defined and explained in large scale detailed working drawings, and in a greater number of those. In parallel to the development of the building specifications it was the ambition to produce working drawings that, as Thomas Larkin Walker stated, “appeal to the understanding of the clerk of works and the workman, and that nothing should be left undecided so as to allow their imaginations to be exercised, and errors committed.” iv The most recent writings on building specifications by John Gelder, Katie Lloyd Thomas, and Maihri McVicar all refer to that. v Parliamentary Papers, Report from the Select Committee on the Office of Works and Public Buildings, Sess. 1828, (446.), p. 5. vi Alfred Bartholomew, Specifications for practical architecture, preceded by an essay on the decline of excellence in the structure and in the science of modern English building; with the proposal of remedies for those defects, (London: John Williams and Co., 1846, [1841]), p. 11. vii John Soane Museum, Tendring Hall, Suffolk: survey, design and working drawings with record drawings for a house and offices together with specifications, estimates and contract for Admiral Sir Joshua Rowley, 1783-89. I would like the Joan Soane Museum and its archivists for helping me to locate these sources. viii There are a variety of examples in the RIBA Library and Archives, such as Georg Dance, Descriptions, (1769) and Rickman & Hutchinson, Specifications, (1828). I would like to thank Katie Lloyd Thomas for sharing her references with me. ix Thomas Larkin Walker, p. x. x James Elmes, A practical treatise on Architectural Jurisprudence; in which the constitutions, canons, laws and customs relating to the art of building, are collected from the best authorities for the use of architects, 9 surveyors, landlords, tenants, incumbents, church wardens and ecclesiastical persons on general, (London: W. Benning, 1827), p. 1. xi Glen W. Cunningham, The law in relation to the legal liabilities of engineers, architects, contractors, and builders, including the law of contracts, arbitrations, masters and workmen, and combination or strikes, (London: Atchley & Co., 1868), p. 1 xii Glen W. Cunningham, p. 28. xiii Glen W. Cunningham, p. 31. xiv Glen W. Cunningham, p. 3. xv See Brain Hanson, Architects and the “Building World” from Chambers to Ruskin: Constructing authority, (Cambridge: Cambridge University Press, 2003). xvi See Linda Clarke, Building Capitalism. Historical change and the labour process in the production of the built environment, (London: Routledge, 1992). xvii Karl Marx, Das Kapital, (London: Swan Sonnenschein, 1867), translated by Samuel Moore and Edward Aveling for first English edition of 1887, Capital, (Oxford: Oxford University Press, 1999), p. 44. xviii Karl Marx, Das Kapital, p. 203. xix See John Gelder, Specifying Architecture, a guide to professional practice, (Milsons Point: Construction Information Systems Australia Pty Ltd, 2001, [1995]), p. 19. xx It might therefore not be by chance that the formation of John Soane’s architectural office coincided with the commission for Tendring Hall (1784). He began employing apprentices that year, and stopped doing everything by himself. 10