Jessie Allen, School of Law, University of Pittsburgh
Book II. Chapter the second. Of REAL PROPERTY; and, first, of CORPOREAL HEREDITAMENTS.
This chapter is about things that last. Blackstone’s property law is obsessed with permanence and impermanence, transience and immobility, with passing down and passing on and passing away. With fixing the intangible. And ultimately with evanescing the solid land beneath your feet into a fantastic network of ideas, ethics, symbols, recognitions, understandings, and institutions that can structure social customs and individual behavior beyond the grave. Reading this chapter I remembered the Bodies exhibit I visited years ago in New York, in which human cadavers had been treated in some special way developed by a mad (and now, I presume, fabulously wealthy) Swiss scientist. In room after cavernous room the bodies had been abstracted into their components – here the hall of tendons, their the gallery of bones. The most stunning was a huge darkened space in which some twenty bodies had been stripped of all substance except for their nervous systems, which were dyed and lit up in glorious reds and purples, like so many intricate human-shaped corals or crochet projects. It was the closest I have ever come to standing in a room with ghosts.
How funny, really, that the classic explication of real property, of “things . . . such as are permanent, fixed, and immoveable,” II. p. 16, should be passed down to us by a man whose legacy is the transformation of centuries of shifting uncodified doctrines into fixed immoveable text. Sitting in their blocky dark-blue box on the corner of my desk, the Commentaries themselves seem to embody the peculiar power of that system to make objects and concepts both more real by rubbing them up against each other. Here things that are usually polarized as being “substantial and sensible, or of an unsubstantial kind” are all grouped together as potential real property, that is, “provided it be of a permanent nature.” II. p. 17. Thus property law gives to natural landscapes the immortality of ideas and to ideas the primal solidity of dirt.
With such wide coverage, there is a lot of organizing to be done. Blackstone is up to the task. Briskly, he corrals a wildly disparate bunch of “hereditaments” – those “corporeal and incorporeal” objects “the benefit of which may descend to a man from his ancestor” – into strict categorical order. II.p.17. The chapter begins by laying out a set of dualities (though sometimes a layer of categories comes in threes) that intersect and overlap. Blackstone tells us that the objects of property (or “dominion”) “are things, as contradistinguished from persons,” II. p. 16, “and things are by the law of England distributed into two kinds; things real, and things personal.” Id. Descending one more level, he proceeds to offer three different real property taxonomies: the kinds of real property, i.e., lands, tenements, hereditaments; “the tenures by which they may be holden”; and “the estates which may be had in them.” Id. Are you dizzy yet?
Blackstone’s categorical structure reminds me of the sort of “intermediary” order Michel Foucault describes in The Order of Things. Property law’s categories are neither “common sense” givens – blue/red, boy/girl, alive/not alive nor scientific theories that universalize and philosophize common sense – the laws of optics, X and Y chromosomes, the elements necessary for life as we know it. Rather, property classifications seem to occupy a space in between, or perhaps apart from, both ordinary perception and high theory. In light of property law’s alternative order, everyday categories lose some of “their original transparency.” Foucault at xxii. So, for instance, Blackstone informs us that “tenement” has two meanings. Colloquially, it means houses, or buildings. But “in its original, proper, and legal sense it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind.” II. p.17
There is a sweeping feeling here — a suggestion that the legal language has the power to supercede, or maybe to excavate, common sense. And you can sense the political project. At a really basic level, before prescribing any modern features, like freedom of contract, the very strangeness of the elaborate system Blackstone describes plants the suggestion of contingency. In Blackstone’s version, the traditional real property system “frees itself sufficiently to discover that these orders are perhaps not the only possible ones or the best ones.” Foucault at xxii. I think Foucault has it exactly right here. The main work Blackstone’s book does is not introducing us to the particular values and structures of Anglo-American property law. Of course it does that. But the more important point is that the familiar landscapes, objects and relationships of our lives all can be reorganized along another set of lines that were somehow there all the time without our noticing them. Property’s categories don’t replace the everyday ones. I still think I live in a house, not a corporeal hereditament. But the effect is to throw into relief the order we live by and take for granted. The new system offers a kind of silent critique of the world as we know it.
Crucially, the legal categories are presented as both more basic and more sophisticated than the ordinary objects of experience. Tenements and estates and hereditaments are offered as fundamental categories that have been there all along, underneath, as it were, our everyday perceptions of houses, owners, and your grandmother’s bracelet. At the same time the legal realities are implicitly more refined, more carefully constructed and thus more perfectly suited for their role as the cutting edges that will define who receives the powers of ownership and exactly what those powers will mean.
One of the most interesting moments in the chapter comes when the categories fail. Towards the end of the chapter, Blackstone notes with obvious discomfort “that water is here mentioned as a species of land.” II. p. 18. Uh oh, property law seems to have made a categorical shift that even Blackstone finds unbelievable. It’s as though, rather than saying that a tomato is a kind of fruit I announced that a tomato is really a banana. Oh no it isn’t! After his initial embarrassment, however, Blackstone collects himself and proceeds to rationalize this apparent categorical blunder in terms of the technical legal rules for pleading property claims: “I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water.” II. p. 18. Hmmm.
The thing to keep your eye on here, it seems to me, is not so much how the legal rules deal with water as the way they magnify the importance of land. The approach Blackstone describes constructs land as a symbol of permanence way beyond any natural characteristics. Doesn’t water regularly wash away the land it borders? Never mind, in Anglo-American property law, land has been transformed into a literal, eternal baseline for all natural space. Land is the most elemental element, the alpha and omega, that without which nothing. Without land nothing, but with it — permanence. You can get ahold of that elusive water by getting the land underneath it — and getting it for all time. And yet (and here is what I have grown to love about him), Blackstone is too good a writer to completely pull this off. Fatally, he continues, with an observation that I can’t help thinking reflects metaphorically the ultimate futility of a legal project to forestall loss through a language of permanent rights: “For water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein: wherefore if a body of water runs out of my pond into another man’s, I have no right to reclaim it.” II. p. 18. In the end, it seems, you can’t take it with you.