The property in this chapter is always escaping. The objects of our desire are captured and subdued but recover their original wild nature and are lost, pursued, recaptured and lost again. It’s about possession – but who is possessed, and by what, or by whom?
The story starts out quietly enough, describing personal property in inanimate objects with the first of many lists: “goods, plate, money, jewels, implements of war, garments, and the like.” II, 289 (Although, notice that oddly foreboding “implements of war” tossed into the otherwise quotidian still life.) Things start to get interesting with property in animals, which “have in themselves a principle and power of motion.” Id. Again, there’s initial calm: “horses, kine [cows], sheep, poultry,” II, 390 but you can feel the tension building as captivity becomes more obvious and less stable: “deer in a park, hares or rabbets in an enclosed warren, doves in a dove house, pheasants or partridges in a mew, fish in a private pond.. . .” II, 392 Then, a cascade of increasingly precarious and vexed connections – “my tame hawk that is pursuing his quarry in my presence. . . . my pigeons that are flying at a distance from their home,” Id. “the deer that is chased out of my park or forest and is instantly pursued by the keeper or forester,” “a swarm, which flie from and out of my hive, . . . so long as I can keep them in sight and have power to pursue them.” II, 393 Everywhere, abandoned owners stumble after galloping, flying, evanescing property.
“Once there was a little bunny who wanted to run away./ So he said to his mother, ‘I am running away.’” Margaret Wise Brown, The Runaway Bunny
Ownership of these wild things, the wonderfully alliterative ferae naturae, lasts only as long as you control them, or at least have some imminent prospect of regaining control. So, hawks, swans, deer, foxes, bees are free (meaning free for the taking, not endowed with any autonomy that law protects) until they are captured, or “tamed and confined by the art and industry of man.” II, 392 And it’s not just animals. This kind of “qualified” property “may subsist in the very elements of light, or air, and of water” on account of their “vague and fugitive nature.” II, 395 No particularly commanding force is required. It’s all relative, and all about the object’s capacity to slip from its owner’s control. Animals can be owned without the aid of traps, leashes or cages “on account of their own inability.” II, 394 So, when “coneys or other creatures make their nests or burrows in my land, and have young ones there, I have a qualified property in those young ones, till such time as they can fly, or run away, and then my property expires.” Id.
“’If you run away,’ said his mother, “I will run after you.”
It’s often said that the U.S. Constitution’s fugitive slave clause denied slaves legal personhood and relegated them to the status of property. But reading Blackstone makes clear that the text goes even further. By declaring that property in human beings would not be subject to the fluctuations long understood to affect ownership of non-human animals, the American founders created a new category of super (or sub) property. Actual possession is no longer necessary or even relevant. A deer that escapes my park is no longer mine, but a slave is a slave is a slave.
Notice that the new acontextual property in human beings has a modern, rational feel to it. It seems factual. Things are what they are. Animal, vegetable, mineral. In comparison, the malleable common law has a fairy tale quality, with its shape-shifting changes from property to natural resource and back to property again. Dred Scott v. Sandford, the infamous nineteenth-century case holding that a slave taken to a free state was still a slave and denying citizenship to all African Americans, is on everybody’s list of all-time U.S. Supreme Court fails. But when I teach the case in my property class, my students often struggle to find the opinion’s flaws. In fact there are many mistakes of history and logic, to say nothing of politics and justice, but they are masked with a great sense of consistency and stability. No more need to assess the meaning of uncomfortably complex and changing relationships of ownership, control and identity. No more border crossing. No more of this frog, prince, frog nonsense. Everything and everyone is going to be what they are and stay that way once and for all. Indeed a concurring justice in Dred Scott mocked as a “kind of magic” the idea that contextual shifts could change the “essential character” of property.
But notice also that the common law’s transformational approach to personal property aligns with what we now claim to recognize about the categorical identities—the properties– of race and gender, namely that they are social constructs subject to change, not unchanging universal facts. And maybe a familiarity with fairy tales goes along with that understanding. I still remember when the daughter of a white friend of mine came home from school and told her mother about the day’s lesson on Rosa Parks. In response, my friend proudly recounted her own participation in a civil rights march in the 1960s. “Mommy,” exclaimed her excited kindergartner, “were you Black”?
In Blackstone’s common law account, the things one owns are not themselves “property.” Instead, at least grammatically, property is something that permeates or inhabits certain objects under various circumstances and then disappears when the circumstances change. Think of it as a quality, or a spirit, perhaps, or, even more materially, as a substance – some kind of liquid or gas that occurs invisibly (although I sometimes imagine it imparting a kind of metallic shine or glow to the objects it invades). Sometimes property even seems to be a living thing, as when, explaining qualified ownership of wild animals, Blackstone refers to the “species of property” that “may subsist in such animals.” II, 391 The animal within the animal. The ghost in the machine.
This simultaneously material and contextual approach to property rights seems utterly alien to both our current way of thinking about law and our rational scientific understanding of the physical universe. These days we assume the separation of these two worlds: on the one hand moral sentiments, legal rules and political relationships that constitute property rights and, on the other, the amoral reality of their biophysical background. It’s just too strange and silly to treat property as a mysterious spirit or substance, let alone a kind of creature, that slips in and out of objects and animals, binding them to us with its presence, and with its disappearance releasing them. Maybe I am unusually prone to this kind of thinking at the moment, because of all the changes going on around me. Don’t ghosts traditionally appear at the crossroads? In my house we are betwixt and between a pair of transformations as my husband finishes grad school and our daughter, our only child, turns eighteen and prepares to leave for college, to be released, as it were, back into the wild.
In defense of my sanity, let me just point out that property law today is still very much in the business of enacting transformations, changing things from objects of ownership into legal subjects and back again, personifying and depersonifying. In Blackstone’s day, “dogs, bears, cats, apes, parrots and singing birds” occupied a borderline status. As creatures kept “for pleasure, curiosity, or whim” whose value was “not intrinsic, but depending only on the caprice of the owner” they were not quite fully personal property. II, 393 Stealing a dog might be some kind of “an invasion of property,” but it could not be a crime. II, 392-393 Today dogs and other “companion animals” still occupy an unstable marginal status, but they have moved to the other end of the property-personhood spectrum. In one case a dog might be treated as a thing that belongs to its human household and in another as a member of that household. Judicial decisions about where the dog of a divorcing couple will live sometimes read more like custody arrangements than property allocations.
Nor is it only domestic animals that approach legal personhood. Several years ago a group of whales sued Sea World through their “next friend,” the organization PETA (People for the Ethical Treatment of Animals). It was a Thirteenth Amendment claim. The whales alleged that by kidnapping and confining them, and forcing them to breed and labor for their human owners’ profit, Sea World had enslaved them. The federal judge dismissed the complaint on the ground that in the Thirteenth Amendment “the terms “slavery” and “involuntary servitude” refer only to persons.” Tilikum v. Sea World, 842 F. Supp. 2d 1259, 1263 (2012) Whatever you think of the judge’s ultimate ruling, it is certainly ironic to find a federal court assuming without argument that for purposes of the Thirteenth Amendment, the categories of legal personhood and humanity are coincident. After all, the constitutional text it amended and the institution it outlawed were based on a similar assumption regarding whiteness. Why is the twenty-first century assumption that only human beings can be constitutional persons any more unassailable than the nineteenth century conclusion that only white human beings can be constitutional persons? Especially once you recall that legal personhood extends to corporations, which enjoy some constitutional rights.
If anything, the whale case makes glaringly obvious that we reach for biological facts to define legal rights only when we choose to, and there is no reason at all to assume the coincidence of rights and any given physical realities. At the same time, crossing up legal rules and physical realities is a ubiquitous, if only half-conscious, legal practice. Law leans heavily on physical metaphors to enact and explain its rulings. We speak of judges being constrained, “bound,” to rule as they do. Judges “weigh” interests and “balance” specified circumstances, and when they make policy choices it is only to fill “gaps” in a preexisting “body” of law. There are plenty of other discourses and institutions that harness (see, there’s one right there!) physical metaphors to carry out persuasive projects. But as I talk with my students and colleagues it often strikes me that we sound as if we are talking about some mechanical or other sort of physical system that can set things in motion or stop them with words alone. At the same time, these discussions rarely mention actual physical coercion by real embodied humans, the police and soldiers who enforce legal rules and judicial decisions. It’s a discourse that denies its materiality at the same time that it is defined by it.
Critics occasionally note law’s substitution of metaphor for violent reality. “Metaphors in law are to be narrowly watched,” Benjamin Cardozo warned. Berkey v. Third Ave. Railway Co.., 244 NY 84, 94 (1926) But the grammar of physical capacity is so pervasive and familiar that it generally does not even strike us as metaphorical: a binding contract, a broken law, a statutory constraint. Consider Blackstone’s bland assertion that inanimate objects of personal property cannot “be moved out of the owner’s possession without his own act or consent.” II, 389. It’s as if property law is a force that immobilizes things and makes them stick to their designated owner (imagine a kind of magnetism or chemical bonding), so that they literally can’t be moved unless the owner does something, or, perhaps, in the ‘consent’ case, says something that, like a magic spell, undoes the attachment.
Blackstone himself seems to recognize the odd materiality of his description, because he immediately backtracks, explaining that he means that the objects can’t be taken from their owner “without doing him an injury, which it is the business of the law to prevent or remedy.” II, 389 Of course, you could read that qualification as a further physical description of ownership as a kind of adhesion, so that tearing an object away from its rightful owner takes some of the owner’s flesh with it – a kind of band-aid theory of property. Probably, though, you read it to mean that violations of legal property rights can be understood as the legal correlative of physical harms, another physical metaphor.
Now here’s where things get really strange. Blackstone’s use of “injury” in this sentence is not a metaphor at all. “Injury” originally means the harm of legal violation or injustice. You can see this in the morphology of the word, which contains the root “jur” as in jurist, jurisprudence, jury. In this case, the metaphorical arrow is reversed. “Injury” is a metaphor when we use it to express a purely physical, nonlegal harm, a broken arm or a stubbed toe. So it turns out that the confusion of physical realities and legal rules does not just complicate and constitute our understanding of law. Our observations of the physical universe are shaped in part by our application of legal concepts to what we observe. Indeed, the term “law” itself is routinely used metaphorically to describe observed physical regularities, as in the second “law” of thermodynamics. The “laws” of nature are not an empirical fact that we found in a world completely untouched by social structures. The idea that observed regularities are somehow prescribed or necessary comes not from observation but from legal culture. All the world’s materiality is already pervaded by law.
Goods, plate, money, jewels, implements of war, garments. . . . fire, light, air, and water, as long as they are in actual use and occupation, but no longer. . . . hawks that are fed and commanded by their owner. . . . baby hawks, herons, coneys or other creatures who make their nests or burrows in my land, till such time as they can fly or run away. The common law of personal property seeps in and out of the world’s common objects, materials and creatures. In the process, the familiar comes to seem strange and is reshaped, made familiar again from a different perspective. Categories shift, disappear, are transformed and reappear. Through it all there is a kind of conservation, as if, just as nothing is ever guaranteed to stay the same, nothing is ever irretrievably lost.
Recently I was visiting a friend in another city, and she gave me a key to her apartment so I could come and go as I liked. Holding it, I was struck by how atavistic the thing was – this hunk of worn metal warming in my hand. It’s not just that for years we’ve been opening hotel and office doors with a magnetic tap or swipe. It’s the nature of the thing itself: how heavy for such a small object, how rigid, thick and shiny. The key seems like a relic of an earlier age it shared with subway tokens and the glass bottles that used to hold everything from shampoo to Coca Cola. Yet there must be millions upon millions of keys currently in the pockets and backpacks and purses of people all around the globe. How strange that something could be so ubiquitous and at the same time so plainly marked for extinction, as if it already belonged to the past.
“’If you run after me,’ said the little bunny, /‘I will become a fish in a trout stream and I will swim away from you.’/ ‘If you become a fish in a trout stream,’ said his mother,/ ‘I will become a fisherman and I will fish for you’.”