Blackstone Sparks Joy

Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter the Twenty-Eighth, Of Title by Custom.

The quirky doctrines in this chapter muddle the line between animate and inanimate beings. Reading about old legal customs that treat objects like people made me think of legal practices today that turn people into things, and wonder if there is any way to shift those practices.

Consider customary heirlooms. As Blackstone describes them here, heirlooms are not at all what we think them now, not pretty, sentimentally freighted objects that remind us of dead relatives and connect us to family history. Instead of jewelry and china tea sets we get “marble chimney pieces, pumps, old fixed or dormant tables, benches and the like,” heavy furniture and fixtures bolted to the floor or too bulky to be moved out of the house. II, 428. According to Blackstone, “loom” is a Saxon word meaning “a limb or member; so that an heirloom is nothing else but a limb or member of the inheritance.” II, 427. Heirlooms are things that can’t be “taken away without damaging or dismembering the freehold.” Id.

Heirlooms cannot be willed away from the land, although the things that become heirlooms can be sold or given away before the owner’s death. II, 429  For this seeming contradiction Blackstone produces one of his trademark explanatory fictions: While alive, an owner “might mangle or dismember” his property “as he pleased,” but at the instant of the owner’s death, his whole estate – looms included – passed by law to his heir. Id. Because a will takes effect only after death, it’s too late to “dismember” the estate; it has already passed intact to the new hereditary owner. Id.  The big problem with this rationale is that it doesn’t work for the estate itself. Ever since the Statute of Wills in 1540, an English landowner can will all his property away from the designated legal heir. If a will can pry the whole body of an estate away from the heir to whom it passed at the moment of the previous owner’s death, why can’t it cut off a few limbs?  You could try to rationalize this contradiction by pointing out that the power to will real estate comes from a statute, and statutory reforms sometimes mess with common law consistency. Or you could throw up your hands, protesting (as did Jeremy Bentham) that this is the kind of feeble illogical nonsense that you get with legal fictions. But as long as we’re spinning stories, why not say that the cohesive force that holds the inherited estate together is stronger than whatever binds it to the heir? It may be painful to tear oneself away from another person, but (in general) it is far more painful to tear oneself apart. Just so, the will can separate the body of the estate from the body of the heir, but it cannot dismember the inheritable body of property.

Becoming an heirloom isn’t only a matter of physical attachment. Animals can be heirlooms. Not ordinary farm animals, but creatures who are part of a specific grant allowing otherwise forbidden hunting or fishing. Thus “deer in a real authorized park, fishes in a pond, doves in a dove-house,” are heirlooms because they are “necessary to the well-being of the inheritance.” II,427. The last heirloom example is the Crown Jewels. Ordinary jewelry is not legal heirloom material, no matter how fabulously valuable it is or how long it’s been in the family.  But the crown jewels are “necessary to maintain the state, and support the dignity, of the sovereign,” so they both constitute and prove the royal role. II, 428. That ambiguity between creating and proving some legal condition is a familiar feature of the way law treats personal status. Compare the racial identity trials that, according to Ariela Gross, were common in the United States up through the early twentieth century. What Blood Won’t Tell. These trials had little if anything to do with ancestry and bloodlines and everything to do with a performance of race.  Proving whiteness was a matter of demonstrating character. By acting white and having others testify to the whiteness of their behavior, some people were able to become legally white.  Of course, as Gross observes, this kind of movement across hierarchical racial lines only reaffirmed those boundaries: “the very act of proving whiteness to win citizenship or freedom reinforced the idea that only whites were worthy of citizenship or freedom.”

There are no more racial identity trials, but law is still very much in the business of moving people across boundaries that delineate hierarchical degrees of personhood and confirming the reality of those limits. During the 2008 election, I worked on a voting rights case  in Missouri involving local election boards’ failure to put people with criminal convictions back on the voting rolls after they had served their time.  The state’s law provided for reinstatement, and the applicants’ names no longer appeared on the official monthly lists of those disenfranchised by conviction.  But the election officials refused to re-register them without some positive paper proof of renewed eligibility. The wanted a judgment, or a legal certificate—some written declaration that the people standing in front of them had been returned to themselves – something, in fact, like the deeds of manumission Virginia slaveholders used, writings that could set a slave free if proved in a county court by two witnesses. When we explained to the officials that no such papers were required – or even existed– they were incredulous. The documents they imagined were not just proof of a change in status but the mechanism necessary for such a transformation. How was it possible to turn someone back into a voter without some such paper?  It was like Harry Potter trying to get from one fireplace to another without floo powder.

My snarky reference to kids’ fantasy fiction makes the election officials’ confusion sound foolish, or perhaps pretextual, but actually I think it was both rational and sincere. Almost every U.S. state strips people of voting rights when they go to prison, and like most legal transformations, criminal disenfranchisement requires performance. The Missouri election officials were aware that the people wishing to re-register to vote had lost their voting rights through elaborate legal rituals, perhaps including a full-blown public trial, and certainly at least an appearance in public court while represented by a lawyer for the “allocution” of a guilty plea and sentencing by a trial judge. Then comes prison, in conditions that for many, if not most, inmates destabilize the sense of self and enact a material, psychological version of the “civil death,” that befell felons at common law. And when the sentence of incarceration is over, many of the legal disabilities that came with criminal conviction persist. There are literally thousands of these “collateral consequences,” which vary from state to state, and each amounts to a right taken forever from the convicted person – the right to serve on a jury, to work as a contractor, a barber, a cosmetologist, the right to be eligible for government benefits, such as food stamps, public housing and student loans – losses that, if not like limbs are at least like bites taken out of one’s legal personhood.  No wonder the election officials doubted that simply being released from prison could transform someone back into a rights-bearing citizen entitled to vote.

For better and for worse, law constantly redraws the boundaries between person and property, and moves human and non-human beings back and forth across the lines between calibrated subcategories of both.  Sometimes, like the men in Missouri, they get stuck on the wrong side.

The legal customs Blackstone recounts in this chapter perform a dizzying series of transportations and transformations. At the instant of the homeowner’s death, the house and land become a limbed body that must not be dismembered and some other living human becomes at once heir to that body. Along with marble chimney pieces and such, the inheritable body’s limbs include “a monument or tombstone in a church, or the coat-armor of his ancestor there hung up,” II, 428, but not the body of the ancestor himself, which somehow escapes altogether the category of personal property, even though it is buried in the manorial churchyard that is part of the body of the estate. II, 429. According to Blackstone, the heir has no legal action if grave robbers desecrate the body, although they can be charged with stealing shroud. Id. The body it wraps is no longer a legal person capable of ownership, but neither is it a thing that can be owned.

I get the feeling that Blackstone finds the weirdness and variability of personal property embarrassing. Almost all of this volume on property law is devoted to real estate with just these few chapters at the end covering what seems to be an almost random selection of personal property doctrines. There’s a kind of mixed wonder and anxiety here about the unchartable plenitude of this stuff.  Live animals and bulky furniture, signet rings and second-best dinner plates – what the hell are you supposed to do with them all?

I can relate. On my desk right now, besides the slag heaps of papers and notebooks, are some sea shells, a few seed pods, two smooth white stones, a piece of pink Deer Isle granite, an old typewriter ribbon can, a ticket from the Chiesa di S. Maria del Carmine, a “Lucky Mojo” candy tin, a green metal lizard, a lion-shaped terra cotta pot foot, a small white Day of the Dead skeleton, an old key, a coffee can filled with pens, and a blue ashtray that holds a wind up skull toy, a piece of coral, an expired rabies tag, a Chinese cookie fortune, an unused postage stamp, and a matchbook advertising the law offices of Jayson Lutzky – “Need a Lawyer? Divorce $99 Close Cover Before Striking.”  It’s charming and it’s totally counter-phobic. I get anxious when I look at it, but less anxious than when I try to ignore the chaos of materiality and my inability to make sense of it.

Marie Kondo is someone whose work I thought of more than once reading this chapter. If you are not familiar with her passionate evangelism for “the life-changing magic of tidying up,” check out her best-selling book by that title or her show on Netflix. Kondo’s basic approach to personal property is easy to summarize: Throw out everything that doesn’t “spark joy.”  At first this looks completely contrary to the heirloom doctrine.  Instead of identifying what’s necessary to an integral body of property, we’re picking up each individual tchotchke and deciding whether to keep or chuck it based on how it makes us feel. The insistence on maintaining the integrity of a bunch of things that are physically and conceptually connected seems far removed from any individual human’s feelings. But Kondo’s joy criterion is not altogether different from identifying “such things as cannot be taken away without damaging or dismembering the freehold.” II, 427. For one thing, both turn away from market value.  Kondo doesn’t care how much something cost or what kind of shape it’s in – if when you pick it up and hold it, the thing doesn’t enrapture you, out it goes. Likewise, heirloom designation is oblivious to price on the open market: silver candelabras and fancy china are worth a lot more than that old wood table, but it’s the table that has to stay.

Both systems seem to be about a kind of merging between a person and her property. Kondo explains that the order she is looking for is not a matter of skill or expertise: “As an organizing fanatic and professional, I can tell you right now that no matter how hard I try to organize another’s space . . . I can never put someone else’s house in order in the true sense of the term.” TLCMOTU at 6.  It’s true that Kondo emphasizes individual feelings and getting a home to embody “extremely personal values,” whereas the heirloom doctrine is geared to make sure an inherited estate retains its formal legal character. Id. From a slightly longer perspective, though, common law and Kondo don’t look so different. Like Kondo’s “KonMari” method, the heirloom doctrine is directed toward creating and preserving the authentic character of a home, keeping what belongs to it not because of some intrinsic value but because it is integral to that character.

More to the point, like Marie Kondo, Blackstone’s heirloom custom treats inanimate objects of property as if they were living beings with human attributes. The heirloom doctrine prevents owners from “mangling and dismembering” the body of an estate by tearing away its “limbs,” while Kondo urges us to bring stored “dormant” objects out into the light, “jolting them alive,” and, by letting them go,”[f]ree them from the prison” to which they’ve been relegated. TLCMOTU at 44, 61. From a modern rationalist perspective this looks like a childish pretend game or a big mistake. It’s another version of the worldview modern Western observers ascribed to “primitive” cultures and labeled “animism.”  Look at these people treating inert material objects as ensouled beings! What a whopper of a category error! But arguably the mistake is to insist on the categories in the first place.

The modern Western observers assumed that other cultures held modernist ideas of self and personhood and wrongly attributed such personhood to insensible natural objects. But as the anthropologist Nurit Bird-David points out, objective reality “does not necessarily consist dichotomously of a physical world and humans.” Animism Revisited  at S68. She argues that “animism constitutes a relational . . . epistemology” that is “about knowing the world by focusing primarily on relatedness.” Id. In such a worldview, the paradigmatic person is not a human being in an ‘environment’ of non-human animals and objects. Instead a person “objectifies relationships of . . . mutual sharing of space, things and actions.” Thus animists “maintain social relationships with other [non-human] beings not because . . . they a priori consider them persons.”  It is rather the reverse: “because they engage in and maintain relationships with other beings, they constitute them as kinds of person.” Id. at S73.

If I squint hard, I can see in the heirloom doctrine something like this relational view – and with it the potential to constitute a legal world in which individual humans are not entirely in charge of, separate from, or even entirely different than the things they own. In that world, property and personhood both arise from an interactive network of relationships among beings – human, animal, vegetable, mineral — that all have some capacity to affect one another and are expected to receive sympathetic treatment. Legal subjects are not individual bodies that gain and lose personhood as they meet or fail to meet various legal criteria. The primary concern is relationships among beings – human and non-human – out of which legal personhood arises. Sure, this doesn’t look much like the legal system as I generally understand it.  And of course I can’t be certain that it would be an improvement. But it was rather surprising, and in a way hopeful, to find in Blackstone’s canonical property text a fluidity that suggests that, even in its most classic forms, law need not always be committed to line drawing and categorization – a place for everything and everything in its place. And that it’s possible to see in these old odd doctrines the capacity not just to redraw categorical lines but to erase them.

Originally published on October 11, 2019.