Why Begin at the Beginning?
Jessie Allen, School of Law, University of Pittsburgh
Book the Second, Chapter the Sixteenth. Of TITLE by OCCUPANCY.
This chapter is about where things begin and what they become. For Blackstone, “the true ground and foundation of all property” is occupancy, or, “the taking possession of those things which before belonged to nobody.” II, 258. You might expect that Blackstone would want to show that his beloved common law reflects that original justification, the only one that “natural reason suggested.” Id. Possession is still a crucial factor in determining who owns real estate, so Blackstone easily could have stressed its continued legal role. But no. Instead he chose to emphasize that private property’s original justification had been “confined by the laws of England within a very narrow compass.” Id. What’s up with that?
As John Berger says, origin stories are always about trying to understand the way something is, not just the way it started; otherwise we wouldn’t care. About Looking, 6. In the story Blackstone tells, the original mode of acquiring land has been reduced to a single, oddball circumstance – a way to patch the failure of a particular cranky form of ownership known as a life estate pur auter vie. II, 258. At first it just seemed perverse to me that in the property scheme Blackstone describes possession, the only natural law basis he recognizes for private ownership, is relegated to this tiny stop gap. Then I began to think about how marginalizing that natural law justification expanded the importance of the creative legal fictions that Blackstone celebrates.
In Blackstone’s vision, the artificial structures of property descent — the tables of consanguinity, the counting of degrees of connection, the lineal and collateral lines, the confabulated treatment of a newly purchased estate as something passed down from a distant ancestor – extend to cover virtually every contingency. Once land has been owned, it will always belong to someone. If the family bloodline runs out, it goes to the descendants of the lord who gave or sold the land to the owner’s ancestor. Failing that possibility, it goes to the king. II, 259.
So when Blackstone writes, in an oddly emphatic first person, “This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law,” II, 261, he is reporting a stunning triumph of legal creativity. Think of it! All those cunningly crafted estates spread out and interwoven through various forms of purchase and descent to cover all of English time and space – all except for this one tiny gap where artifice fails and we see natural law peeking through the gorgeous man made surface. It reminds me of the Persian carpet flaw, the deliberate glitch in the otherwise flawless pattern, supposedly put there in deference to God’s unique capacity to create a perfect object, but, of course, by its very presence proving just the opposite — that the mortal master weaver could and would have produced perfection, had he not chosen to make a purposeful mistake.
Blackstone tells a story of the English landscape’s complete conversion from common space to private property through the application of common law artifice and fictions, a story that stands in striking contrast to the founding American property myth of the wide open spaces. But there’s a crucial link. All the ostensibly unowned American land is ripe for transformation through those same common law fictions and doctrines into private property. The techniques Blackstone describes, can be used to appropriate that land, not just for the luxury of personal privacy, but as a source of real political power. Remember that in both eighteenth-century England and the early U.S., the privilege of choosing law makers belonged exclusively to men who owned property. Only owners could vote. Think of the potential, then, lying out there in all that unoccupied American land, just waiting to be converted into politics through the application of common law property doctrine.
There was only one problem: the American continent was not actually unoccupied. The colonists’ land acquisition was less a matter of taking “things which before belonged to nobody” than of eradicating the previous occupants. This was a time honored colonial practice, which Blackstone described with gimlet clarity as “seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from the invaders in language, in religion, in customs, in government, or in colour.” II, 7. Given the obvious application of that critique to the American project, it is rather surprising that Blackstone’s Commentaries was the most popular legal text in the early United States.
I’ve heard lots of explanations for Blackstone’s early American popularity: because the Commentaries was available at a time when case reports were hard to come by; because of his readable style; because his emphasis on natural rights and limited government lined up with the political philosophy of the new republic. Probably all of these were at work. Personally, though, I wonder if the American affinity for Blackstone had more to do with Blackstone’s appreciation for legal creativity. For better and for worse, legal imagination is what the American founders needed. They needed the fictions and artifice of the common law to reconstruct colonial violence and transform an occupied landscape into wild commons and then into exclusive private property. Blackstone made those common law techniques accessible.
Without such a creative tool for transforming past violence into present legitimacy, you’d be unable to investigate the past. You could never face the violent past of any valued institution. Your only resort would be blanket denial. That’s what seems to be going on, for instance, in a strange New Yorker article I read recently about, of all things, the Parthenon. The article, by Daniel Mendelsohn, reports on a book by anthropologist Joan Breton Connelly, expounding her theory that the Parthenon was built as a site for human sacrifice, specifically ritual killings of young girls thought to guarantee Athenian victories in wars with neighboring city states. Mendelsohn trashes the idea. He pokes fun at the “emotionality” of Connelly’s argument, and makes her sound like an overwrought Girl Scout leader flapping her hands at the dirty bits of an established classic. Mendelsohn can’t deny the violent strain in Athenian culture, including “tales of virgin self-sacrifice.” Apparently, he has read Antigone. In any case, he explains condescendingly that these killings are “old hat”; they “were clearly to be taken metaphorically” The unsophisticated girl scout leader just doesn’t get the joke! But the whole point of Connelly’s book – which I have not read and am only getting via Mendelsohn’s critique – seems to be that the presumed metaphoric nature of the violence is exactly what we ought to reconsider.
At this point the article takes a weird, and decidedly Freudian, turn. It turns out that Mendelsohn has his own longstanding fascination with the Parthenon, and a deep investment in the innocence of that interest. He describes how as a young boy he labored over models of the building – first a cardboard version with toilet paper rolls for columns and, later, in junior high school, a table-sized project with a modeling clay frieze – the same frieze Connelly now contends depicts teenage girls on their way to the slaughter. Mendelsohn’s description of his relationship with “the maiden chamber” is a textbook gendered reversal of the overheated response he attributes to Connelly. Even as an adolescent, he manages not to succumb to crudely literal fantasy. Instead he’s down there in his parents’ basement night after night busy with his mathematically proportioned model, because, after all, what else would a teenage boy be doing with his hands? And while Connelly is still ranting hysterically about the terrible things being done to virgins in some secret chamber, Mendelsohn has moved on. He never finished his model and has no idea what became of it. Recently, though, “out of sentimentality” he bought a flea-market plaster cast of the Parthenon frieze and hung it in on his living room wall, where he likes to contemplate it by candlelight (I am not making this up!). So he has come up out of the basement into the light and his adolescent need to get his hands around the object of desire and find out how the thing is put together has matured into a dignified visual appreciation. So should we all be satisfied, he suggests, with what we know and what we don’t about our cultural icons. After all, Mendelsohn assures us, we “know that they are beautiful.”
Here is an attitude Blackstone never would have tolerated. He may be criticized as the purveyor of imaginative historical and legal fictions contrived to legitimate political violence, but he was not afraid to uncover that violence. Indeed, Blackstone’s faith in the imaginative, transformative power of law seems to allow him to look with unusual directness at the social and political hierarchy he wants to legitimate. In contrast, Mendelsohn is both afraid to imagine the blood bath origins of his personal favorite icon of Enlightenment culture, and unable to imagine that culture has the capacity to recognize and repair a horrific past. He doesn’t even seem to realize how his need for purity all the way down tends to diminish the creative power of the Enlightenment culture he cherishes. Not that this attitude separates him from most of us most of the time. We all want to maintain as much innocence as possible – Blackstone included.
Blackstone’s antipathy to the U.S. is generally understood to be a product of his Tory politics, but possibly his antagonism owed something to the Americans’ use of the creative legal fictions he championed to legitimate acts of horrific violence. It is striking the way he repeatedly connects the U.S. with its recent violent abuse of the same first occupancy that he discounts as having any role in contemporary English property. It’s as though the more Americans embrace Blackstonian legal fictions to legitimate settlers’ property in the new republic, the more Blackstone wants to emphasize that American private property is still tainted with the injustice of its original acquisition.
Finally, it strikes me that there is another lurking appropriation of property here, an individual occupation of previously common cultural ground. I am thinking of the Commentaries itself. In fact, what better way is there to describe Blackstone’s packaging of centuries of wildly disparate court opinions and social practices into four coherent volumes than as his “taking possession of those things which before belonged to nobody” and to everybody. With the success of his treatise, Blackstone became in a way the private owner of the common law, the singular authority in charge of what had previously been a vast, untamed commons. Maybe, in the end, Blackstone identified with the American founders. Now that I think of it, the most creative legal fiction of them all is the notion that once Blackstone was through with his appropriation, the common law was still common. Of course it continues to be shaped and reshaped by judges, lawyers and changing social norms. But at the same time we surely see Blackstone as a kind of common law proprietor. To this day, through interpretations of his text, he exercises an owner’s power to police the boundaries of his property, to say what belongs in and what doesn’t, and maintains a private estate whose temporal reach, so far, appears infinite.
Originally published March 9, 2015.