The common law of property doesn’t get much more arcane and insular than the procedures Blackstone describes in this chapter. So imagine my surprise when his directions for establishing land ownership through a fictional lawsuit helped me understand some things about the current U.S. presidential race between Donald Trump and Hillary Clinton.
At first, the chapter’s subject might sound quite contemporary. After all, we often establish ownership by “matter of record.” Whether it’s a printed receipt, an e-ticket on an iPhone, or the deed to a house, you produce the document to prove that something belongs to you. And the procedures Blackstone describes here all do generate some text that can “be a perpetual testimony to, the transfer of property from one man to another; or of it’s [sic] establishment, when already transferred.” II, 344. But these are not records of any real world property transaction, and the written records themselves are almost incidental. The chapter’s focus is on the complicated legal performances that generate them.
Take, for instance, the “common recovery,” an esoteric proceeding undertaken when legal restrictions would otherwise bar a gift or sale of land. This elaborate courtroom ritual harkens to an ancient public performance aspect of law that predates law’s obsession with written text. Indeed, according to M.T. Clanchy, in Medieval England legal records were themselves oral performances: “In the twelfth century to ‘record’ something meant to bear oral witness, not to produce a written document.” From Memory to Written Record at 77 (Thanks, John Cairns for turning me on to this fantastic book!) The common recovery is a doozy of a legal ritual, and Blackstone is “greatly apprehensive that it’s form and method will not be easily understood.” II, 357. Although he vows to be concise and avoid “as far as possible all technical terms,” it still requires a full three pages that are spotted with plenty of Latin italics. II, 358.
So let me try to nutshell this. Basically, two people who want to transact a legally prohibited sale of land get together and act out a fictional lawsuit that concludes by transferring ownership from the would-be seller to the would-be buyer. Here’s how it goes: The would-be buyer sues the would-be seller, alleging that he (the would-be buyer) is actually the legal owner of the land and the would-be seller got possession illegitimately. The would-be seller defends by calling a person he claims sold or gave him legal title to the land. This third person appears, is made a party to the lawsuit, defends the title, and then, after an out of court conference, disappears – causing a default! Whereupon judgment for the would-be buyer against the defendant would-be seller. The would-be seller now has a claim against the disappearing third party to compensate him for the land he lost because of the default due to that disappearance. But he will never prosecute that claim. The disappearing third party was hired by the other two parties to testify and then abscond. In the end, everybody goes home happy: Title to the land is transferred to the would-be buyer from the would-be seller, who was paid his asking price before this whole charade began.
Note that a common recovery lawsuit, as Blackstone describes it, is not fraudulent. It is fictional. There is no real adversity between the parties who are formally on opposite sides, but no one is fooled by this collusion. Everyone – judges, witnesses, and the public at large — is in on the joke. These are pretend collusive lawsuits. Everyone is acting a part – acting as if they are arguing, testifying, or reasoning – in a performance whose conclusion is understood by all to be as preordained as the final scene of Hamlet. The difference of course is that at the end of the play somebody goes home to a house that he didn’t own before.
Actually, as Blackstone points out, enacting a common recovery requires a complicated blend of fiction and fact. The disappearing third party witness is an entirely fictional character, played by anyone the principals can scare up. Blackstone notes that this role was often played by the court crier — the clerk responsible for opening and adjourning court sessions and generally maintaining order in the courtroom. Like a theatrical stage manager, the crier had apparently seen the play so often that he was able to fill in for a missing actor on a moment’s notice. In contrast, although the part of the defendant in the lawsuit is fictional in the sense that he is only pretending to defend his property rights and actually hopes to lose, this character must be played by the real owner of the property at stake, “else the suit will lose it effect.” II, 362. Why this real ingredient is required for the fictional performance to work is never explained. Blackstone simply asserts that “though these recoveries are in themselves fabulous and fictitious, yet it is necessary that there be actores fabulae, properly qualified.”Id. And here, of course, is where things start to get complicated – and open to question. Because if the common recovery is a fictional lawsuit, brought by fictitious parties (the translation of the Latin actores fabulae), why should they need any real connection to the land at issue? On the other hand, if there is something real about this law suit after all, how can it be okay for so much of what goes on in it to be fake?
You might think that this interleaving of ritual and reality is a quaint feature of ancient property law with little relevance today. But it strikes me that a fascination and anxiety about combining and confusing reality and fiction is a hallmark of modern cultures. By the eighteenth century when Blackstone was writing, there was already something embarrassing about common recovery lawsuits. Even Blackstone, ordinarily an admirer of legal fictions, wants to distance himself. He shakes his head at the “awkward shifts . . . subtile refinements, and . . . strange reasoning [to which] our ancestors [were] obliged to have recourse.” II, 360. And then he makes a telling (and, for him, unusual) gendered comment: “Our modern courts of justice,” he says, have “adopted a more manly way of treating the subject.” Id. Now, it doesn’t seem that the actual procedure has changed. What is different is the attitude of the legal audience. They have stopped regarding these performances as any sort of real law suit and now see “common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands.” II, 360. The elaborate performances with their combination of real and fictional elements remain the same. But they are no longer viewed as courtroom dramas with fabulous actors, fictional conflicts and real effects. They are just a peculiarly complicated, highly formal method that some people have to use to sell their land.
Why should this shift matter? If everyone still needs to slog through the whole complicated rite, why should the change in observers’ attitudes reassure Blackstone and reduce the threat the twisted common recovery poses to the “manly” nature of legal process? I think it is because adopting the frame of formality resolves the conflict between reality and fiction. By characterizing the performance as a purely formal matter, Blackstone avoids the need to judge what is real and what is fictional. A formal performance loses all contingency. There is no longer any need to deal with the queasy combination of truth and fiction and to judge whether the real parties have performed their fictional parts well enough to produce the desired “force and effect.” II, 361.
Crucially, pulling back from performance to legal formality tends to comfortably unite the performers with their audience. In any performance – whether ritual or theatrical – there is always some risk that the audience’s perceptions will diverge from what the performance is intended to produce. Blackstone’s anxiety about the potentially deceptive, unmanly nature of the traditional common recovery is an indication of such a gap, which he quickly moves to close by adopting the modern formal view.
Woe to any performer who finds himself and his audience on opposite sides of the line that separates artifice and reality! For a performance to “work” we do not have to believe that everything we see is real, but we do have to think that we are seeing what the performer wants us to see. In a naturalistic culture, in which fiction is treated as a representation of reality, performances often fail because something looks jarringly artificial. An actor “overacts,” say, and exposes the effort she is putting into her performance, so that we are unable to maintain the illusion that the feelings she displays are genuine. But the problem is not artifice per se. The problem is artifice that is supposed to look real and doesn’t. Nor is the problem always a failure to look real. The reaction to Donald Trump’s Access Hollywood tape is a fine example of how disastrous it can be for a performer if an audience understands something as genuine that the performer wants to be seen – or heard — as artificial.
It might seem that Trump’s problem is simply what he says on that tape – that “when you are a star” women will let you “do anything. Grab ‘em by the pussy.” But I think that it is not only, or maybe even mostly, the content that accounts for the tape’s impact. What we have here is a record of Trump saying things when he did not know he was being recorded. In other words, we are hearing things we were not meant to hear. Trump now insists that what was recorded was not a truthful account of his behavior in the real world but a swaggering fictional performance. He even has a name for the genre of that performance: “locker room talk.” But much of Trump’s public isn’t buying. Which is odd, because up till that point he had been fantastically successful at getting audiences to follow him as he stepped in and out of role in a complex blending of reality and illusion.
Twisting the skein of truth and fiction has been a theme, perhaps the theme, of the Trump campaign. There’s a repeated choreography in which Trump says something provocative, and then when it is criticized as insulting or dangerous, responds that he was only kidding, that we should know better than to take him at face value. At the same time, much of his popular appeal seems based on a claim of unusual authenticity. Unlike “crooked” Hillary, he plays it straight – even if that means being straight up awful. At one of his campaign rallies, Trump remarked somewhat wonderingly, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters”! Ostensibly meant to praise his supporters’ extraordinary loyalty, Trump’s observation also marks the extraordinarily powerful appeal of his performance of authenticity.
The success of that performance persists in the face of repeated revelations that much of what Trump says is totally false. Indeed, paradoxically, his wild claims tend to reinforce his artless image, because by making them Trump reveals his authentically desperate need to score immediate points no matter what the cost. We see someone who, in the heat of a competitive moment, is driven to say almost anything to score — fact checkers be damned! — without stopping to calculate the potential repercussions.
I know something about this tendency, because I share it, albeit in less consequential settings. My husband still teases me about the game of Scrabble, years ago with his parents, in which I laid down a score-busting letter sequence that, when met with skepticism, I confidently declared to be a “sailing term.” I know nothing about Scrabble and less about sailing, and I certainly didn’t know what this “word” meant. But once the letters were on the board ringing up that amazing score it seemed entirely within the realm of possibility that they spelled out a word I vaguely recalled as having something to do with . . . boats, maybe? Let’s just say I was willing to err on the side of winning. Mercifully no one reached for the dictionary, and I was saved from humiliation before my future in laws. It was only later that night, when Doug, still skeptical, did look it up, that we discovered that there was no such word. I say, “we discovered,” because a part of me really was surprised by my own deception. So while Donald Trump is practically the last person on earth I would wish to see President of the United States, I have to admit that in this regard, I am Trump!
Maybe that is why when the Access Hollywood tape first came out I found it hard to believe that it would make much difference. After all, Trump had already stood up in front of plenty of cameras and said and done things that were just as bad or worse than the behavior he described on the tape. This is a man who says he would authorize torture. Why should talk of pussy grabbing prove his political undoing?
The answer, I think, has as much to do with the form of the video as with its content. No matter how much Trump insists that the tape records him playing a fictitious character, most of the audience sees – or hears – it as a gotcha moment of hot mic truth — an accidental peek into a reality the performer did not intend to reveal.
Hillary Clinton, of course, perennially has the opposite problem. The performances she wants to be viewed as truthful often appear artificial. It is a truism among professional actors that the hardest character to play onstage is yourself. You might think it would be easy to just “act natural.” But it turns out to be incredibly, humiliatingly, difficult to stand up in front of an audience in any sort of formal setting and “be yourself.” People who are not used to performing, or who do not like being the center of attention tend to react in ways that make them look and sound artificial. Trump’s ability to perform himself in public settings without obvious artifice is in fact rare, much rarer than Clinton’s effortful discomfort. But it is odd that Clinton, with all her years of practice, her appetite for public office and her relentless work ethic should still be so inept at pulling off a performance that appears artlessly authentic. I can’t explain it, but as an ex-actor I can say with some authority that it almost certainly has nothing to do with any lack of sincerity in her character off stage.
Unfortunately, for Clinton, her inability to master the art of performing artless authenticity plays into age-old characterizations of women as naturally artful and duplicitous. This is the same gendered construction that over 200 years ago caused Blackstone to worry that overwrought common recoveries threatened the manliness of legal procedure. As a matter of fact, Blackstone’s lament about the common recovery’s unsuccessful attempt to hide the artifice with which it accomplished its “laudable” goal, could serve to express my own consternation at some of Clinton’s most contorted campaign performances: “such awkward shifts, such subtile refinements, and such strange reasoning”! II, 360. And so it seems that the confusion of fact and fiction in performance, and the power of such performances to unsettle reality, is not limited to archaic property law. Performers’ ability to manage, and audiences’ ability to decode, the complex interaction of appearance and reality may play a determining role in the most bizarre political campaign of my lifetime.