In Praise of Artifice
This chapter is about a marginal area of property law – the notoriously tricky doctrine of “future estates.” As so often happens, poking around on the margins offers new views of the center. The idea here is ownership without possession — a way to create and pass along estates that the recipients do not possess but expect to possess at some future date. As we are introduced to the complex structures that have been developed for giving folks this kind of “future interest” in land, a certain doubt begins to form about the standard case. After all, what does it mean exactly to possess land or, for that matter, to own it?
If you went to school in the United States in the 1960s, around the third grade your social studies textbook likely served up some version of the following story: When the English and Dutch colonists came over to the American continent, they sometimes tried to buy land from the Native Americans – often for very little. The island of Manhattan was supposedly purchased with beads and blankets. The Native Americans didn’t realize the value of the land (so the story goes), and what’s more, they did not understand that by accepting the trinkets they were giving up the right to occupy and do all the things they usually did on the land – fish, hunt, live, etc. Strangely, they didn’t think of land as the sort of thing that you could possess or transfer in this exclusive way.
The idea that Native Americans were just too dumb to understand the deal they were offered has long been repudiated, along with other stereotypes about the ignorance of “primitive” cultures. What strikes me now about this story is not its culturally ignorant presentation of Native American society, but its bizarrely distorted vision of the colonists’ world view. Because, at least according to the Commentaries, the English colonists should have been quite familiar with the idea that land is not a thing to simply possess and freely buy and sell. In the system that Blackstone describes, land is a deeply problematic and special kind of property. Paradoxically, in AngloAmerican legal culture, land is both the paradigmatic object of private property and the sort of property that most evades exclusive private control.
All of the legal twists and turns in Blackstone’s chapter on future interests are necessary exactly because in the English common law of property there are special constraints on transferring the ownership of land. During early colonial times land could not be willed freely to others after death: “it was not till after the restoration [c. 1660] that the power of devising real property became as unreserved as at present.” II, p.12. In Blackstone’s time, while it was perfectly okay to make a contract that promised to convey goods in exchange for services performed at some future date, it was legally impossible to convey land this way. For that matter, if you watch Downton Abbey, you know that even in the twentieth century England’s fanciest estates could not be simply sold or passed down as the current occupant desired. So what’s up with this idea that the English colonists were surprised by Native Americans’ view that the continent’s fields and forests were not theirs to simply sell?
I suppose the old schoolbook version offers some cover for our country’s violent origins, but that’s pretty thin cover: Foiled in their underhanded attempts to cheat the Indians out of their resource laden homelands, the colonists were forced to resort to the more reliable land acquisition strategy of genocide. Not the most morally compelling justification. Maybe, rather than justifying colonial conquest, the story of Native Americans’ failure to grasp the meaning of private land transfers is a way to expel ambivalence about unlimited private ownership of land. Nothing rids a society of lingering doubts about the legitimacy and utility of private property like projecting those doubts on the people your ancestors conquered and darn near obliterated.
But what does any of this have to do with the Blackstone’s explication of the law of future interests? The story of the clueless Indians relocates traditional restrictions on private land ownership from the dominant legal culture to a presumptively primitive culture due to be destroyed. Think of the legal inventions Blackstone describes here as an alternative story about how to remove restrictions on the exclusive private control of property. To circumvent traditional limits on individual choices about who gets to have your land after you’re gone, “the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law.” Id. Nothing is swept away. Instead the doctrines build on and around the old restrictions, finding ways to circumvent without destroying or even entirely obscuring them. And yet things do become something other than what they once were – without ever acknowledging fundamental change. Against the expulsion of old-fashioned limitations, Blackstone pits a kind of intricate, artificial legalism — the “nicety” of English common law.
What does it mean for law to be “nice”? Certainly Blackstone doesn’t mean that the doctrines of future estates are mildly pleasant. Look up “nice” in the dictionary and you may be surprised. My old Webster’s Collegiate, offers a hopscotch of contradictions. Skipping over the obsolete meanings (Wanton, dissolute), we first get “coy, reticent” “showing fastidious even finicky tastes; particular” and next the most obvious candidate for Blackstone’s usage: “possessing, marked by or demanding great, sometimes excessive, precision and delicacy.” Then come the familiar contemporary meanings: “pleasing, agreeable” and “well-executed,” but bizarrely these are followed by what seem to be their opposites: “most inappropriate: bad” only to swing back to the other pole: “socially acceptable: well bred” and “virtuous, respectable.” Was there ever such a catalogue of contrary meanings packed into a single syllable? It’s as though the word packs into itself the understanding that every instance of a quality is in some sense a performance, an act, and thus a manifestation of the very lack of that quality and the presence of its opposite.
“Nice” turns out to be a fine word, really, for the kind of tricky legal artifice Blackstone is exposing and celebrating here. This is the chapter where Blackstone presents the art of law as art. Legal doctrines appear here not as the result of some kind of necessary functional evolution, but as the handiwork of individual creative practitioners whose skill should inspire both respect and suspicion. We get names: Sir Orlando Bridgman, Sir Geoffery Palmer – who are credited with the “invention” of the doctrine of remainders, and thus with developing a method of providing “for the future of children of an intended marriage, who before were usually left at the mercy of the particular tenant for life.” II, 172. The way this works is that the person who gets the land first gets a present interest and the person who gets it later gets “the remainder.” That terms make it look like the second person is just getting the leftover scraps, but actually, in most of the deals Blackstone describes, the “remainderman” winds up with the whole megilla, while the first person just gets to use the place temporarily. Nice!
Blackstone is clearly proud of the professional craft on display here. The discussion of future estates ends with a rare direct reference to his audience: “Thus, the student will observe how much nicety is required in creating and securing a remainder” — and an even rarer shift into first-person singular address: “I trust he will in some measure see the general reasons, upon which this nicety is founded.” II, 172. This is an amazing paragraph because it goes on to say that the way it all works doesn’t actually conform to the basic rules at all: “It were endless to attempt to enter upon the particular subtleties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries has been spun out and divided: neither are they consonant to the design of these elementary disquisitions.” Id. (my ital.) But wait, there’s more: “I must not omit,” Blackstone goes on (still using, please note, that direct first-person singular to comment self-reflexively on his own authorial choices) “that in devises by last will and testament . . . in these devises, I say, remainders may be created in some measure contrary to the rules before laid down.” Id.
In contrast to his fondness for the creative invention of new forms of property rights, Blackstone is deeply suspicious of a natural right to property. He takes a dim view, in particular, of the colonists’ dealings with the Native Americans and of the colonial project’s foundation in the idea of natural rights. Under the principle of natural right, he observes, colonists have taken to “seising on countries already peopled, and driving out or massacring the innocent and defenseless natives, merely because they differ from their invaders in language, in religion, in customs, in government or in colour.” II, 7. That approach fails on its own terms, Blackstone points out, because it leads to conduct that violates the basic tenets of all three of the purported sources of natural rights, being “not consonant to nature, to reason, or to Christianity.” Id.
In a sense, Blackstone offers the “nicety of common law” – the nicer and more abstruse the better — as an alternative to the violence of natural rights. But here, of course, is where the critique of Blackstone as an apologist has some force. Does legal protection of private property really replace violence or only mask it? Because of course what makes a property system legal is that if you don’t go along with it you get violence. If you pop over to your neighbor’s estate to pick some of his potatoes because your kids are hungry there likely will be very little nicety of any kind in the treatment you’ll receive; you’re going to get the men with guns. It is not all that different, in the endgame, from what would have happened to the Indians of Manhattan if they had not taken the beads and the blankets. If law does not replace violence, but only defers and monopolizes it in a way that will sometimes prevent the justly violent taking of food for starving children, is law still something we want? Blackstone thinks so.
In the end what struck me most reading this chapter was the faith Blackstone puts in legal creativity and guile – his delight in the inventive duplicity of the lawyers who manipulate legal fictions to reshape reality. I get the sense that Blackstone feels about natural rights the way I feel about clothes made out of “natural fibers.” He doesn’t seem to see anything necessarily better about a natural right than a right that’s been designed and manufactured by a bunch of crafty professionals for a handsome profit. He is not a purist.
Once upon a time I was more concerned with purity, or at least, authenticity, but my friend Ruth set me straight. We were walking in Manhattan’s West Village – this must have been 20 years ago – and we passed a then relatively new, fully appointed re-creation of a cozy English tea room: floral prints, tiered platters, bangers n’mash, the whole nine yards. How ridiculous, I remarked, to put all that energy into tricking out such a place in New York City. “What’s wrong with it”? Ruth asked. “It will never be real,” I responded, “no matter what they do it will just be a pretend English tearoom.” “Why is real better than pretend,” she persisted, “why isn’t it just as good – or better, really, to make something up? It isn’t like an English tearoom is a fact of nature, but suppose it was? What’s the great virtue in being natural? Why not just make things the way you want them, instead of feeling like you have to stick with the way they are”? Well, if he were alive, I’m pretty sure Blackstone would happily dine at Tea and Sympathy on Hudson Street in lower Manhattan. Although, of course, he would still disapprove of the way the land on which the shop stands was taken from its original inhabitants.