Jessie Allen on Blackstone: Pencils: Book the Second, Chapter 32



Jessie Allen, School of Law, University of Pittsburgh

Book II, Chapter 32: Of Title by Testament and Administration

This is the last chapter in Blackstone’s volume on property.  Fittingly, it’s about what happens to personal property at the end of life. Human mortality is a really big problem in a legal system built on rights inherent in mortal humans. So a final chapter on last wills and testaments has triumphal potential. After five-hundred-plus pages of navigating challenges and conflicts that arise in a system of private property, our hero – law – produces a way to extend property rights beyond the grave and rides off into the sunset. But that’s not how it goes. Instead we get a meandering description of how personal property gets distributed after an owner’s death. Wills are presented as, at best, a tenuous and partial way to determine who gets what, with many limits and exceptions and ways to fail. I wouldn’t call it a happy ending.

How do you keep a system of private property rights going when the rights-bearing subjects keep dying off? The obvious (to me) strategy would be to couple the concept of inherent human rights with Christian notions of the immortal human soul, and so ground a posthumous right of continuing control over one’s earthly property. But Blackstone runs in the opposite direction. He insists over and over that the right to dispose of one’s property after death is not inherent, but “merely a creature of the civil state,” allowed by some governments and denied by others. II, 491 It’s a kind of echo of the book’s early warning that, even though property is an “absolute” right, inheritance is “no natural, but merely a civil, right.” II, 11 Wouldn’t you think that this would trouble a natural law believer? This is property’s most magical characteristic, after all — that it becomes a sort of container for privileges and protections that can be passed from person to person along with material objects that outlast their original owners. If this superpower is attributable to contingent political decisions, it rather overshadows the importance of natural rights.

Apart from any need to advance a general theory of natural law, I’d expect a book that sets out to promote a scheme of intergenerational private property to justify that system as natural.  Claiming that a law or social policy reflects and responds to the nature of things has long been the go-to rhetorical justification. It’s epitomized in this fraught pandemic year by the demand that lawmakers “listen to the science!” So it’s remarkable that Blackstone goes out of his way to deny personal legacies any natural status. Instead, he points out that, “even when it is permitted by law,” an individual’s right to distribute property with a will “is subjected to different formalities and restrictions in almost every nation under heaven.” 491 This chapter is about those formalities and restrictions – the details.  I was about to say that it’s about the trees, not the forest, but actually, sticking with the forest metaphor, it’s about the mycorrhizal network.

Recent biological research reveals that trees interact constantly with one another and with other organisms through a vast underground network of “root-associated (i.e., mycorrhizal) fungi.” Averill et al. The fungi feed trees soil nutrients in exchange for energy the trees obtain through photosynthesis. It turns out that we missed the forest not by looking too closely at the trees but by not looking closely enough.There’s a debate about what trees’ participation in these networks means about plants’ capacity for anything that we would want to call communication or agency. But there doesn’t seem to be any disagreement among experts these days that seeing trees as autonomous individuals doesn’t just miss the forest, it misunderstands the basic nature of trees. The fungi not only connect trees to one another, they intermingle with the trees internally – mixing things up at the cellular level. Reviewing experimental findings about the way trees and fungi exchange resources, the biologist Merlin Sheldrake observes that “it might not be appropriate to think of plants as such neatly separable units.”  Entangled Life at 153

Likewise we might wonder what Blackstone’s view of the socially constructed right to will property means about the people who will it. Are they also socially constructed?  If rights emerge out of a historically contingent social network, rather than inhering universally in humans, we might see individual rights-bearers as the product, rather than the source, of their legal rights.

There is actually something quite troubling about a concept of private ownership that ends with the owner’s death, because property really only comes into being in the owner’s absence. As long as you are still hanging around on the land, in the house, holding your wallet – you have the sort of physical control that needs no legal definition or recognition to at least provisionally exclude others. You are literally having and holding in a bodily sense that is not a question of moral or legal rights. It’s when you step away that ownership appears. Property arrives when you leave.  It’s when you get up from the library table to go to the bathroom that the backpack you leave behind turns into property – or, at least, that is when its status as property, its ownedness, becomes salient as a reason for other people not to carry it off, or, for that matter, shove it aside and sit down in the place you just left. Even while you are alive, property is a kind of haunting. The whole idea, really, is that you don’t have to take it with you for it to still be yours. So, if ownership is an incorporeal connection in your body’s absence, why should it end with the death of your body?  Uh oh, this only makes sense if the end of your body is the end of you!

When my daughter was little, she was made extremely anxious by the picture books they read to the children in nursery school.  She experienced the kittens’ lost mittens and baby owls’ absent mother with unbearable foreboding.  So the teachers told me that they had hit upon a solution. Before reading, they would show her the final pages of the book – the mittens found, the owl returned from hunting. Then she would be able to tolerate the suspense of the story.  Of course narrative is a kind of preparation. Training. It’s easy to see how children’s stories with happy endings might help us learn to cope with the uncertainty of embodied existence, or, perhaps, with the certainty of where it leads. Happy endings reward anxious tolerance. But it seems that tragedy helps as well, and that is harder to understand. Aristotle’s theory of catharsis notwithstanding, how does it make us feel better to watch a story like, say, Hamlet, when in the end everybody you root for dies?  I suppose that’s the point, though —  everybody dies but you! When the stage is piled with bodies and the curtain falls, somehow you have managed to survive.

This week my husband is on autopsy detail. He will not be performing autopsies.  He will be setting them up for the brain research study that employs him. In life, the research subjects undergo a battery of exams – brain scans and interviews, and standardized cognitive tests that he has been administering over the phone from home during the pandemic. On the landing outside his studio I hear him: What do you call the part of your shirt that covers your arm? What is the word for a ship’s window, a violent snowstorm, a small hill that is made of sand? This week, if any of the participants dies, he’s the one who will make sure that a brain that has lost track of blizzards, and portholes and sleeves gets dissected for clues about where those things went.

Toward the end of my mother’s life, when I would buy her presents – a silver pin, a hand-painted dish from a shop in Florence, I would sometimes catch myself thinking “when she dies this will be mine.”  One time we were sitting in the car, waiting to pick up my daughter from school.  “Oh, look at those beautiful dishes,” my mother cried, pointing to a shop window. There was a set of the most gorgeous patterned torquoise tableware. It was near her birthday, so I bought a couple of cups and bowls. Then, I gave her the cups and one bowl, and I kept the other bowl for myself.  I was thinking that someday I would have a set and in the meantime she would be just as happy with the single bowl on her table whether the other one was with me or in a cabinet somewhere in her apartment. My god! I sound like those horrible greedy girls who always get the worst of it in fairy tales.

Before my mother died, a great many of her things wound up getting lost, broken or stolen, but I do have those beautiful blue dishes I bought that spring in Brooklyn.  Now sometimes when I’m emptying the dishwasher I find myself wondering what, if anything, my daughter will want to keep. It’s surprisingly satisfying to imagine her, for instance, whipping something up in the big yellow Mason and Cash mixing bowl in an otherwise completely unspecified future. I wonder if my mother ever thought about such things. If she did, she kept it to herself.  She probably didn’t want to burden me by letting on that she would like me to keep something that I didn’t specially like. She was always looking for ways to not affect anyone in a negative way. When it came to legacies, hers was sort of an anti-will approach.

I read this New Yorker piece by Ann Patchett about her determination to clear away her unnecessary and unused possessions. This was brought on by the experience of helping a close friend sort through her recently deceased father’s jam-packed apartment. Something about confronting crates of bottled water and Orientalist statuary filled Patchett with a kind of horror. I tossed the magazine down without finishing the essay, annoyed by what I took to be another attempt to stave off death by taking control of one’s physical surroundings. But weeks later I went back to it, and it turns out that Patchett is not out to evade death but to meet it head on. She feels like all these material things – the hundred-odd dishtowels stuffed in a drawer, the collection of antique champaign flutes– are separating her from death, and so from life, creating “a barrier in my understanding. . . so instead of thinking about what was coming, and the beauty that was here now, I was thinking about the piles of shiny trinkets I’d accumulated.”

Of course she’s right that the beautiful blue dishes are a distraction – shiny objects that momentarily divert my mind from the black spot I found on my temple the other day (it turned out to be a scab), the fact that I keep forgetting whether I have turned on the dishwasher, the way familiar words spelled correctly now sometimes look strange when I type them on the screen.  Honestly, I feel like it might not be so bad to be distracted from these things. But I think the main reason I find Patchett’s project so wrong headed is that I have found that some very odd, small things acquired from departed relations bring unpredictable joy. My daughter was commenting on this the other day when she FaceTimed me from her apartment in Connecticut and I saw that she had on an old flowered cordouroy shirt of my mother’s. She had cut off the sleeves, and it looked great. She pointed out that she has repurposed all sorts of pieces from what we call the “dead grandparents collection,” including my husband’s father’s belt and one of his silk shirts from the nineteen-seventies.

One of the best things that I got from helping clear out my in-laws’ house was a bunch of really good No. 2 pencils made by an American company that no longer manufactures them. The erasers were so dry they smeared black all over the page, but the leads were dreamy – so smoothe and dark. I used them down to stubs, and when they ran out I searched around and bought myself three more boxes off Ebay. The pencils belonged to my husband’s dad, Herb. I also have his electric pencil sharpener. Beige plastic with fake wood panelling on the front.  Hideous. It’s probably 40 years old. I almost didn’t take it, but my sister-in-law said, “Oh, come on, who doesn’t want an electric pencil sharpener?” And now I use it all the time.  I don’t always think of Herb when I sharpen a pencil, but sometimes I do. There’s no doubt in my mind that part of why I get a kick out of that pencil sharpener  — the jarring whir, the way the pencil vibrates and kind of comes alive in my hand as the blades chew away at it – is that it came from Herb. Not really that it came from him specifically – or not only that — but that it came from someone I knew who came before me. Using this clunky little machine connects me in a visceral way to a past that stretches back through my own youth and on beyond me, and so suggests a vague possibility of connection that is not entirely dependent on my bodily presence. Is this the illusion – the shiny distraction Patchett warns about? Or is it part of “the beauty that [is] here now”?

Maybe there’s no possible clean finish to a story about a legal structure whose subjects keep popping off like spent bulbs in a badly wired chandelier. This volume of the Commentaries opens with a vision of private property that is quoted all the time. In Blackstone’s first famous description, property is a kind of microcosmic hereditary monarchy, an absolute right that echoes the divine right of kings. Nothing in the world, he writes, “so generally strikes the imagination and engages the affections of mankind” as property, with its radical promise of  “sole and despotic dominion . . . over the external things of the world.” II, 2 By the time we reach these last pages, we are very far from that majestic vision of individual sovereignty. The power to will one’s private property is justified not by our nature as the ordained rulers of the world, but by a pragmatic need to keep us from killing each other. It’s a governmental tool for preventing the “infinite variety of strife and confusion” that would result if every time someone died his property were suddenly up for grabs.  II, 490  I’ve never seen this closing chapter quoted.

Even when wills are allowed by law, the person who makes one is not really in control. In Blackstone’s telling, executors are in charge and always get the last word. A “bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor.” II, 512 And legacies are only distributed after the executor makes sure that all the creditors are satisfied. This is not some kind of legal triumph over death. It’s a finnicky administrative process, as ordinary as a yard sale.

And yet. Transfering personal property at death still offers some kind of individual transcendence – not to the people who make the transfer but to the ones who receive it. It’s not so much about the power to determine who gets your stuff after you die as something about what it means to get things that belonged to someone else. Maybe that’s why Blackstone introduces the chapter’s topic as “acquiring personal estates . . . by testament,” not disposing of them. II, 489 (my itallics) Objects passed to us from other lives seem to increase our capacity to carry out actions that don’t originate entirely with our bounded individual selves. They encourage the “twice behaved behavior” that Richard Schechner calls the basis of all performance, the sense of acting at once as “not me and not, not me” as we step into roles that reconstitute the churning social drama. Nothing lasts. The pencils get used up. The bulbs flare out, but the chandelier stays on and changes shape across the centuries.

And so this chapter, and with it Volume II of the Commentaries, trails off into some details of intestate distribution in London and York. There’s a long sentence musing about the possible ancient sources of these local legal customs and their “not improbable” diffusion by the Romans. II, 520 Then some white space. Then “THE END OF THE SECOND BOOK.”  Just like that, we’re done.