Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter the Thirtieth. Of Title by Gift, Grant and Contract

This chapter has a hard time separating fact from fiction.  It’s sort of a ghost story.

There’s this numinous “property” floating around, apparently separate from the embodied items that are being bought and sold, stolen and recovered. Talking of sales, Blackstone explains that “[a]s soon as the bargain is struck, the property of the goods is transferred” to the buyer. II, 448. The “property of the goods” is not the goods themselves. So, what is it?  An idea?  A power? A right?  A spirit?  Realistically, nothing is transferred – no thing.  Instead something happens – the buyer agrees to pay for the goods and the seller to deliver them – and that formal commitment has consequences. Blackstone gives this example: “If A sells a horse to B for ten pounds, and B pays him earnest or signs a note in writing of the bargain; and afterwards, before the delivery of the horse or money paid, the horse dies” the buyer, or, “vendee” still has to pay, “because by the contract the property was in the vendee.” II, 448-449. You haven’t got the horse but you do have “the property” of the horse “in” you, so joke’s on you when the horse you don’t have dies. Thus does the metaphysical property spirit suddenly materialize and bite you!

What makes this legal magic trick work, of course, is not –or not only– some metaphysical thought object, but the fact that in our rule of law system, the parties to the agreement can call on state force to make it stick. When not just the goods but the “property” is yours, men with guns will come to protect it – or to make your buyer pay up. But Blackstone reframes these pragmatic consequences as ritual transformations. He actually describes a sale as “a transmutation of property from one man to another.” II, 446. These transformative market performances are all the more dazzling because they are accomplished with such mundane material – cloth, cattle, plates.  Tangible objects and intangible property are split apart and put back together again, and subjects are imbued with new roles and relationships as they acquire or lose property in things that seem to be possessed in more ways than one.

In one of the more remarkable feats of sales magic, someone who has no property can make it suddenly appear. Blackstone explains that “property may also in some cases be transferred by sale, though the vendor hath none at all in the goods.” II, 449.  I had to read this several times to get the point — that selling stuff you’ve stolen can make the buyer a rightful owner.  The thief who stole the watch doesn’t own it, but if she sells it to some credulous person who knows nothing of her crime, suddenly that invisible property spirit reappears – whooshing from the person from whom the watch was stolen, skipping over the thief, and landing in the happy purchaser. If the person whose watch was stolen spies it on the new buyer’s wrist, it’s too late to call the men with guns. When thieves become sellers, buyers get to be owners.

We tend to think of property as a story about objects, but in Blackstone’s version, it’s the subjects who change – as a result of their connections with the objects exchanged. Anthropologists describe personhood in hunter gatherer societies as “emergent, constituted by relationships which are not totally given but which . . . must be worked out in a variety of social processes.” Nurit Bird-David, Animism Revisited.  In this scheme, there is a social network first – a dense, complex set of twisting, interweaving overlapping ties among humans, places, animals, and things. Out of these dynamic connections selves emerge. There is little if any sense of an intrinsic identity that exists before or outside these relationships. The self –the person, the subject – is just a temporary knot in the social lines, a bump in the social fabric. In such a world, the opposition of subject and object is unstable.

The modern Western worldview is ostensibly committed to an unchanging dichotomy between persons and property. But in Blackstone’s property regime objects can have souls and legal rituals can turn persons into things. And if you think that animistic power has disappeared from twenty-first century law, think again. The United States Constitution explicitly accords criminal conviction the power to transform persons into property, in, of all places, the Thirteenth Amendment – the Constitutional provision that outlaws slavery “except as punishment for crime whereof the party shall have been duly convicted.”

What’s more, it appears that the treatment of the criminally accused person as a kind of chattel, is already underway well before a criminal conviction. Blackstone describes a transaction called a bailment as “a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed by the bailee.” II, 452. In some bailments, the bailor pays the bailee to do something with the bailed object, like cloth “bailed to a taylor to make a suit of cloaths,” or simply to look after it, as when “a horse, or other goods, be delivered to an inn-keeper . . . he is bound to keep them safely, and restore them when his guest leaves the house.” Id.  In others, the bailee pays for the temporary use of the bailed object, the rented machine or borrowed library book – or, yes, the accused criminal. That’s why we use the term “bail” for the payment made to spring an arrested person from jail and secure his return to court at an appointed date.  It seems the state’s mere possession of arrested persons’ bodies – very much without their consent — undoes liberal self-possession and transforms those subjects into objects that can be exchanged for cash. Thus the state may bail their prisoners as property, even before they have been convicted of any crime, just as thieves who possess stolen goods may sell them and so sever the objects’ ties to their original owners.

Except for horses. According to Blackstone, “there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses.” II, 450. What to make of this peculiarly immutable tie between horse and human?  There’s an obvious opportunity here for a mystical explanation, but Blackstone turns pragmatic.  He says the reason for the anomalous rule is that “a horse is so fleet an animal that the stealers of them may flee far off in a short space and be out of the reach of the most industrious owner.” II, 451. I guess it’s easier to run off with fleet-footed horses then, say, pigs or a plodding cow, but outside the agricultural realm, horses are hardly the easiest things to spirit away. Surely it is easier to pocket a diamond ring and hop a train. There must be something in play besides ease of transportation and concealment. Maybe there was a more widespread problem of horse theft and better-established black markets for horses than for hot jewels or stolen pigs.  But I spent a lot of time around horses at one point in my life, and I will say that few things in my experience more obviously reveal how little we understand the interactions of minds and bodies, and the permeable boundaries of both. If you asked me how a rider communicates with her horse, I could tell you about some things to do with your hands and legs and back, but I couldn’t begin to explain why any of it works.

As it happens, my initiation into the mysterious connections between horses and humans was about as unlikely as finding animist magic in a Tory barrister’s eighteenth-century legal treatise. The Chicago Pony Club was installed uncomfortably in three rundown barns west of the city, alongside an interstate and just up the frontage road from a Ramada Inn.  Presiding over the whole iffy set up was a middle-aged émigré riding instructor, whose formal manners, stereotypical Germanic rigidity and contempt for all things American might predictably have been too intimidating — or too ridiculous — for a bunch of Midwestern teenagers, but we revered him. Nor was our faith in Hugo Schroeder’s rigorous dressage training shaken by the fact that he was, or had been, a Nazi. I mean an actual Nazi; he had served in Hitler’s army.

In fairness – if there can be such a thing in this context – I doubt he had much if anything to do with Nazi ideology. He joined the army as a teenager and was shipped off to North Africa where he was first shot and then captured and so sat out the rest of the war in a prison camp. That was the story anyway. The truth is that I have no idea what he thought of the whole thing. I never asked him, and no one seemed to think much about it. Possibly our lack of curiosity had something to do with the times. This was during the Vietnam War, and boys sent off to kill and be killed in an immoral war was a familiar narrative. Mostly, though, I think that we found Mr. Schroeder’s presence so immediately compelling that we gave little thought to his past.

Certainly I never had – and never would have – a teacher so passionately convinced of the value and beauty of what he had to teach and so transparently horrified by his students’ inability to absorb it. “Get off that horse,” he would cry, “I show you”! Or, worse, “She will show you” as he tossed some temporarily more successful pupil up into the saddle. In between explosions, he always seemed ruefully amazed to find himself stuck with the futile task of teaching horsemanship to a bunch of inept American girls, but he never once stopped trying.

I don’t know what kept me going with horseback riding.  From time to time, I had a good ride in a lesson or at a show. But mostly I was just bouncing around a dusty indoor arena, getting blisters. It must have had something to do with the proximity to those gorgeous, powerful beasts – the sheer physical joy of touching them, grooming them, leading them around, and with the wonder of actually getting to sit astride and direct these thousand-pound animals.  But I don’t recall having any such feelings at the time, or at least not in any sustained way. It strikes me now that there is something similar in my relationship to law. There’s the proximity to power and the insular hyper-technical culture mediating my tenuous connections with that power. There’s the specialized language, routines, and apparatus– blacksmiths and bailiffs, curry combs, injunctions, cross ties and motions in limine. And there’s the gap between these highly formal worlds and ordinary life, between the charged majesty of a courtroom or a cross-country course and eating yogurt on the couch.

On the landing outside my husband’s studio, I hear him administering a cognitive test over the phone to some subject of the Alzheimer’s research study that employs him.  I have memorized the answers to some of his questions: Daisy. Church. A banana and an orange both are fruits. A ruler and a watch both measure things. He reads them a story, a paragraph or two about boys playing soccer and the ball flying into a neighbor’s yard.  He tells them that when he is done, he will ask them to tell him what they remember, and that they should use as many of the words he read to them as possible. This seems wrong to me. I can’t help but think that the people who understand the story best would be most likely to recount it using different words. These are the people who will see things in the story that the person who wrote it didn’t realize were there. It seems perverse, even cruel, to penalize that capacity in a test of someone’s failing cognition. And it seems to me to be related to complaints about Blackstone’s metaphysical approach to property law.

The great U.S. Supreme Court justice Oliver Wendell Holmes mocked the idea that law consists of anything besides the words of legal texts and judges’ predictable rulings. He had nothing but contempt for people who inject their sentimental moral judgements into legal analysis. For Holmes, the idea that law created rights, as opposed to enforceable outcomes, perverted rather than legitimated legal rulings. The transubstantiated property in Blackstone’s chapter is exactly the kind of fantasy Holmes was trying to expose when he wrote that “for legal purposes, a right is only . . . the imagination of a substance supporting the fact that public force will be brought to bear upon those who do things to contravene it.” Natural Law, 32 Harv. L. Rev. 40, 42 (1918). The men with guns again.

The conventional wisdom is that Holmes was the leading edge of a skeptical revolution that overthrew Blackstone’s old fashioned view of law. And you might see a kinship with today’s “textualist” justices who claim to be finding and enforcing the objective meaning of legal texts, uninflected by any value judgements of their own. But when Holmes gets down to it, his ‘just the law ma’am’ approach flies out the window. His own legal rulings are full of an appreciation for the creative capacity of positive legal sources that resonates with the same animist imagination as Blackstone’s doctrinal fictions.

Here is Holmes adjudicating a constitutional challenge to a treaty between the U.S. and Britain protecting endangered species of migratory birds. The State of Missouri claimed the treaty violated the Tenth Amendment, whose enactors would have viewed the killing and selling of birds as a matter for state control. But Holmes explained that legal “words that also are a constituent act, like the Constitution of the United States . . . have called into life a being the development of which could not have been foreseen completely by the most gifted of begetters.”  Missouri v. Holland, 252 U.S. 416, 433 (1920). The Tenth Amendment means more than what its enactors understood. “It was enough for them to realize or to hope that they had created an organism.” To understand what the constitution allows or prohibits today, the Court has to consider not just the text but “our whole experience.” Id. Holmes is famous for insisting that lawmaking is fundamentally a threat of lethal force. “[A]ll law means I will kill you if necessary to make you conform to my requirements,” he once wrote. Letter to Harold Laski, quoted in Alschuler, From Blackstone to  Holmes, 36 Pepperdine L. Rev. 491, 498 (2009).  But it seems that, like Blackstone, he was fascinated by what he could not help but conceive as law’s world-creating potential.

Most of my memories of riding are quite prosaic. There are little bits, though, that perform a semblance of the country-girl life I sometimes imagined as I was bouncing along the interstate in the bus that used to bring us out to the stable. I remember that another girl and I would occasionally ride bareback, the two of us together on one stout pony, Silver Dollar. We’d head away from the highway along the fence lines to some woods where we’d take turns jumping him over an old sofa someone had dumped there, as if it were a mossy fallen tree in a proper English forest. And sometimes in dreams, I am galloping through a city, clattering down cement sidewalks and stairs, and jumping iron fences and police barriers as if on some weirdly urban cross-country course, and I feel a familiar mixture of anxiety, determination and awe.

Published December 8, 2020.