The Royal Fish, or, Blackstone is Boring
Well, I promise I will never again complain about short chapters. This one, enumerating the various sources of government funding for merry old England circa 1760, seemed to go on forever. I was put in mind of the observation that a life without any bad habits might not actually be longer but it will certainly seem longer. This is pretty bland stuff. Though there are occasional amusements –mostly in the form of historical ephemera that reveal the source of some modern term or custom. For instance, I now know that the term “treasure-trove” derives from the French trover, to find, and originally meant “where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth or other private place,” p. 285, which, back in the day, were apparently considered the property of the king. In the end, though, I concluded that what was most interesting about this chapter was how boring it was.
Why is this part so boring? I think it’s the lack of a certain linear drive — at least at first glance, there’s no plot here, just a really long list of all the different kinds of the king’s “ordinary” and “extraordinary” revenues. The “ordinary” parts of the king’s revenues are the customary ones, which, along with the basics like rents on the king’s lands and profits from the king’s courts, include quite a range of oddball assignments like the aforementioned treasure trove. It is typical of Blackstone that he spends only 8 lines on what must have been one of the greatest original sources of royal wealth, “escheats of land,” i.e., the rule that any land that had no heirs to claim it reverted to the crown, and pages and pages on things like the rules for shipwrecks and the right to the “royal fish,” namely, whale and sturgeon, which “on account of their superior excellence” were considered the property of the king when they either beached or were caught offshore. (p. 280) Not surprisingly perhaps, these sources are insufficient to support the executive government of eighteenth century England, where the people “are now obliged to have recourse to new methods of raising money, unknown to our early ancestors.” (p. 296) The “new methods” that produce the king’s “extraordinary revenues” are not bake sales and raffles, they are taxes raised by parliament, and the whole last half of the chapter is devoted to an exhaustive explanation of the various types of taxation in force in Blackstone’s time, the imposts and excise duties on “printed silks and linens, at the printers; starch and hair power, at the maker’s; gold and sliver wire, at the wiredrawer’s; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, . . . . coffee and tea, chocolate, and cocoa paste . . . all artificial wines, . . . paper and pasteboard . . . malt . . . vinegars; and the manufacture of glass . . . .” (p. 310) It is a list, Blackstone remarks darkly, “which no friend to his country would wish to see farther encreased.” (p. 310)
Of course one can find, or invent, a story or an argument in this itemization. I could say that this whole chapter is really Blackstone’s defense of the relatively modern idea of taxation imposed by an elected legislature, and his critique of the mess the current government has made of that idea. First he details all the odd traditional revenues and points out that these no longer can support the government. He insists that the thing “to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes,” but “wisdom and moderation” in a tax scheme. (pp. 296-97) Then he comes down hard on the unwieldly and irrational system of national debt, excise taxes and customs duties and the associated retinue of tax collectors and administrators that have “extended the influence of government to every corner of the nation” and “thrown such a weight of power into the executive scale of government as we cannot think was intended by our patriot ancestors.” (p. 324) The end of the chapter is wistfully utopian. Blackstone envisions a future in which “our taxes shall be gradually reduced” and the “adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose.” (p. 326)
Okay, so there’s a story there after all. But I really had to dig for it. And as always, I’m both eager for narrative and impatient with it. In a way, boring as it was, the initially exhausting, just-one-damn-thing-after-another, messy list-like quality of this chapter is ultimately more intriguing to me than the political argument I found to structure it. At one time I would have said that was because the messy list is more like life. But now I’m not so sure. Now I wonder if it’s more about a struggle between two different kinds of structure and the value different cultures place on those structures.
The linear narrative/argument structure is so much the quintessential modern way of framing the world and, for all our talk of “post” modernity, still so ascendent in my world that I can do it in my sleep. (As a matter of fact I practically am doing it in my sleep right now at my kitchen table in Brooklyn at 5 a.m., having been driven from my bed hours ago by anxiety about all the things I have to somehow accomplish and fear I never can accomplish in the next few weeks.) I both crave and resist the trajectory of narrative and analytic argument. Things seem incoherent without them, vague and, as I said at the beginning of this essay, hopelessly dull. But with them they seem forced, driven and single minded, and ultimately false. I am aware, by the way, that in this discussion (digression?) I am mixing up two forms that many readers, perhaps especially lawyer readers, will regard as distinct or even opposite, i.e., narrative and analytic argument.
There is a fascinating critique of traditional legal analysis that maintains that while legal opinions are generally structured as analytic arguments, they can be better understood as stories, with stock plots, characters and morals. (See, e.g., Minding the Law, by Anthony B. Amsterdam and Jerome Brunner (2002)). While the narrative analysis of law has illuminated the extent to which judicial outcomes rely on drama rather than logic, in a sense I have always found that analysis frustratingly limited because it has always seemed to me that drama and logic are a lot alike. Both stories and arguments have this kind of projectile drive that sets them apart from the kind of structure that seems at once much simpler and more impenetrable to me, namely the kind of repetitious, static categorizing itemization that made me yawn my way through this chapter.
It seems to me that, in a way, Blackstone’s leaden recitation of the idiosyncratic rules and customs for financing the king of England may be more threatening and more illuminating to a modern legal-analytic way of thinking than traditional narrative can ever be. That’s because it lacks the forward motion, the striving, the getting-from-point-A-to-point-B quality of both conventional legal argument and a conventional story line. Like a good story, a good argument has a sense of direction, of having set a course from the outset that determines the journey and the destination. Not only does this mostly list-like chapter lack this kind of teleological drive, if there is any equally complex structure at work in Blackstone’s survey of revenue sources and the rules and practices that govern and surround them, I can’t see it. But that may just be because this kind of itemized categorization is not as familiar to me as narrative and analysis. I may be missing the articulation — and the artifice — in Blackstone’s tax catalogue just because this structure is unfamiliar to me.
The irony here is that the careful ticking off and description of every single thing that belongs in some category is a recognizable legal genre. In fact, isn’t this still what contracts seem to be all about, and all those other quintessential legal documents — wills, deeds, codicils, amendments, plea bargains, marriage settlements, insurance policies, prenups, etcetera etcetera etcetera? Then why does it seem so foreign to me — a trained lawyer and, for that matter, a law teacher? No doubt it is partly because my legal experience is as a litigator, not a transactional attorney, but I think it is more than that, more about legal culture and 21st century American culture than just about my own idiosyncratic experience. Blackstone’s revenue taxonomy is recognizably legal but also recognizably old fashioned. Compared with a legal argument from premises through facts to conclusions it looks dodgy and unsophisticated, and (I keep coming back to this) tedious.
In the United States in 2009, I’ll bet most people would see it the same way. But there might be another way to see it — a perspective from which this kind of listing provides a long, deep look into life and into legal structures — a kind of picture of the intricate and disordered, or partially ordered, mixed up customary and codified systems that refuses to smooth out the complexities, to shave off the bits that don’t fit neatly, and above all that doesn’t move — that doesn’t seem to drive toward some conclusion and so provides a marvelously rich view. When I think about it this way, I think of my friend Aileen, an artist and art education teacher who grew up in a little Scottish town where her grandma used to call to the neighbors, “come and look at Aileen’s drawings — she’s so smart”! What strikes me now is that this chapter may be boring not because it’s dull but because I’m not smart, at least not smart enough in the almost visual way that it is organized. I don’t have the kind of brain that can take something like this in. Lord knows I haven’t had much practice. Legal-institutional culture in the U.S. today — certainly legal education — and popular culture, too, so privileges both the driven analytic intelligence of conceptual argument and the ability to recognize and decode an unfolding narrative that this other more descriptive, for lack of a better word, way of thinking is rarely required. When it is, we tend to see it as a stodgy, highly conventional form of legal practice, one that may be financially rewarded but that has little potential to generate interesting legal theory or to shed any light on the role of law in society. What would happen if we really studied and consciously practiced this profoundly anti-narrative, anti-analytic way of thinking that is still so present in so much legal writing? I have an inkling that we might be surprised at what it would show us about our own legal culture. Okay, now I’m going back to bed.