For Blackstone it is an article of faith that the way things are can be explained by the way they were. This chapter is entirely devoted to excavating the feudal origins that, according to Blackstone, still shape contemporary British property law. I don’t have the background to critique his view of history. What I can say is that Blackstone’s historical narrative, however accurate, does a marvelous job of advancing one of the Commentaries’ main (if implicit) themes, namely, the preeminent power of legal institutions to shape society.
At the same time, Blackstone’s historical approach creates some real problems for his more commonly observed project of legitimating the current system of legal rights. After all, if we have to look to the ancient past to see law’s order, that suggests a certain degeneration. Things fall apart, or at least get more complicated than their original structures. The remaining forms may be less clear, less rigorous than the law of the past. More particular to the specific historical tale Blackstone is telling, there’s a definite problem of what nowadays might be called “transitional justice.” Remember that Blackstone is all about tracing English common law to “time out of mind.” What the common law system lacks in rationality it needs to make up in cultural authenticity and sheer antiquity. But there’s the little matter of the Norman Conquest blowing a huge gaping French militaristic hole right through the story of English legal rights reaching back to ancient times. Whence the legitimacy of a property system that begins with a conquering king confiscating his subjects’ land and redistributing it at the point of a sword?
Watching Blackstone finesse his way through these thickets was quite a lawyerly treat. On the first point, Blackstone seems utterly untroubled, even delighted, by the prospect of contemporary law as the tumbled remains of an earlier scheme. In fact, he fairly revels in the idea. He compares the study of property law to “viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra,” and suggests that both activities furnish “rational entertainment as well as use.” II., p. 44. As an aside, it seems that in matters of aesthetics, as well as politics, Blackstone’s sensibility is utterly contrary to that of his great contemporary critic Jeremy Bentham. The panopticon’s designer surely would prefer a planned legal system that functioned according to plan. For Bentham, unplanned deviations from the original would be obviously a corruption. But Blackstone shows no nostalgia for the “pristine proportion and splendor” of the original. As between an edifice of “pristine proportion” and the “majestic ruins” of some ancient structure, there’s no real question which Blackstone finds more compelling. Id. The ruins, the ruins any day.
As for the second issue, I admit that I did not even think about the problem the Norman Conquest posed for Blackstone until I saw his solution. If, as Blackstone says at the beginning of the chapter, modern English property law is built on feudal foundations, and if European feudalism was imposed on a defeated English people by William the Conqueror, that hardly seems to validate the overarching story here of the ancient and uniquely British origins of common law rights. It seems instead that the whole caboodle can be traced to 1066, and the triumph of military force. Worse yet, how can a legal system whose sine qua non is private property rights possibly be squared with the “grand and fundamental maxim of all feudal tenure” that “all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown”? II., p. 53. Not to worry, Blackstone will show that the received view of feudalism in England is all a “strange historical mistake.” II., p. 48.
According to Blackstone the introduction of feudal property structures into England by William the Conqueror “does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been consented to by the great council of the nation.” II., p. 48. He weaves a tale of a Danish invasion some years after the Conquest, before which, “the military constitution of the Saxons being then laid aside, and no other introduced in it’s stead, the kingdom was wholly defenceless.” Id. No one was happy about the foreign army of Normans and Bretons the king brought over to repel the Danes, and thus the advantages of a feudal system for raising a domestic army became apparent. As a result, “all the principal landholders submitted their lands to the yoke of military tenure, became the king’s vasals, and did homage and fealty to his person,” after which feudal land tenures were formally introduced into British law. II., p. 49.
Okay, now Blackstone can trace property law back through the Norman conquest into the misty British legal past undisturbed by the rupture of any foreign force. So far, so good; but how will he maintain that continuity through the shift from feudalism’s basic principle that the sovereign owns everything to a legal system that protects private property rights?
According to Blackstone, when the English landowners agreed to the feudal maxim “that the king is the universal lord and original proprietor of all the lands in his kingdom” that wasn’t exactly what they meant. II., p. 51. That is, they did not really intend to give up their independent property rights. Theirs was a formal agreement that at the time “probably meant no more than to put the kingdom in a state of defence” by obliging themselves to defend the king’s territory “as if they had received their lands from his bounty upon these express conditions.” Id. The whole deal was fictional. Remember that in Blackstone’s version, the oaths of fealty in exchange for a gift from the king came years after the land actually had been distributed. Because the nobles already owned the land the king was ostensibly granting to them, they were “by no means beneficiaries” and so could not be expected to really provide everything they promised in exchange. Id.
This looks like a nice point for an English contract lawyer, but is it any surprise that the Normans didn’t agree? Indeed, isn’t the whole point of a feudal system that when the king makes you a gift of land – however fictional – he is making you an offer you can’t refuse? Apparently that is how the Normans saw it, in particular the Norman “interpreters,” i.e., lawyers. But note that now we are back in familiar legal territory – and once again legal property rights are being determined (at least immediately) through interpretations and arguments, not bloodshed.
To be sure force is in the background. If the English landholders had lawyers, one doubts they could have prevailed, however skillful. Nevertheless, force has been deferred. In what is really the money shot of Blackstone’s historical revision, he explains that Norman lawyers “skilled in all the niceties of the feudal constitutions” willfully misinterpreted “this fiction of tenure from the crown” and used it “to impose “fruits and dependencies . . . hardships and services,” which the British landowners “with reason looked upon . . . as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth.” II., p. 51. Of course, you know how this is going to end. Eventually force comes back into the picture. The oppressed English landholders “rise up in arms” against the “rigors of the feudal doctrines.” II., p. 52. But when they do, they have the legitimacy of law on their side. They don’t fight for “mere infringements of the king’s prerogative” but to restore the rights of Englishmen under the ancient Saxon law that predated the conquest and under the ‘true’ interpretation of the gentlemen’s agreement that the Normans misconstrued. Id. They fight, as it were, inside the law.
Now look where we’ve arrived: (1) The shift to a feudal property system in England came about not “by the force of Norman arms,” but by the English landholders’ agreement to feudal structures “as ordained by the general council,” and (2) the subsequent shift away from feudal structures to private property rights came about “as a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers.” II., p. 52. The law giveth, and the law taketh away.
In Blackstone’s history, not only is the modern system of private property descended from legal norms that have existed from time immemorial, any twists and turns in that descent take place within the legal system. Legal rituals, not force, or politics, accomplish the evolution from ancient Saxon law through feudalism up to contemporary property structures. Private property rights are “not (as some arbitrary writers would represent them) . . . extorted from our princes by taking advantage of their weakness,” but fundamental cultural values that have been around from the dawn of recorded history. II., p. 52. And even when property rights were corrupted, during the bad old feudal days, it was not so much the fault of a megalomaniac king or bloodthirsty soldiers, but of those crafty lawyers who can make and remake rights and obligations in the forms they choose. For better or worse, in Blackstone’s world a nice legal argument is always mightier than the sword.