{"id":4308,"date":"2020-12-08T17:38:20","date_gmt":"2020-12-08T22:38:20","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4308"},"modified":"2020-12-08T17:38:20","modified_gmt":"2020-12-08T22:38:20","slug":"horses","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/12\/08\/horses\/","title":{"rendered":"Horses"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter the Thirtieth. Of Title by Gift, Grant and Contract<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0has a hard time separating fact from fiction.\u00a0 It\u2019s sort of a ghost story.<\/p>\n

There\u2019s this numinous \u201cproperty\u201d floating around, apparently separate from the embodied items that are being bought and sold, stolen and recovered. Talking of sales, Blackstone explains that \u201c[a]s soon as the bargain is struck, the property of the goods is transferred\u201d to the buyer. II, 448. The \u201cproperty of the goods\u201d is not the goods themselves. So, what is it?\u00a0 An idea?\u00a0 A power? A right?\u00a0 A spirit?\u00a0 Realistically, nothing is transferred \u2013 no thing.\u00a0 Instead something happens \u2013 the buyer agrees to pay for the goods and the seller to deliver them \u2013 and that formal commitment has consequences. Blackstone gives this example: \u201cIf 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\u201d the buyer, or, \u201cvendee\u201d still has to pay, \u201cbecause by the contract the property was in the vendee.\u201d II, 448-449. You haven\u2019t got the horse but you do have \u201cthe property\u201d of the horse \u201cin\u201d you, so joke\u2019s on you when the horse you don\u2019t have dies. Thus does the metaphysical property spirit suddenly materialize and bite you!<\/p>\n

What makes this legal magic trick work, of course, is not \u2013or not only\u2013 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 \u201cproperty\u201d is yours, men with guns will come to protect it \u2013 or to make your buyer pay up. But Blackstone reframes these pragmatic consequences as ritual transformations. He actually describes a sale as \u201ca\u00a0transmutation\u00a0<\/em>of property from one man to another.\u201d II, 446. These transformative market performances are all the more dazzling because they are accomplished with such mundane material \u2013 cloth, cattle, plates. \u00a0Tangible 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.<\/p>\n

In one of the more remarkable feats of sales magic, someone who has no property can make it suddenly appear. Blackstone explains that \u201cproperty may also in some cases be transferred by sale, though the vendor hath none at all in the goods.\u201d II, 449.\u00a0 I had to read this several times to get the point \u2014 that selling stuff you\u2019ve stolen can make the buyer a rightful owner.\u00a0 The thief who stole the watch doesn\u2019t own it, but if she sells it to some credulous person who knows nothing of her crime, suddenly that invisible property spirit reappears \u2013 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\u2019s wrist, it\u2019s too late to call the men with guns. When thieves become sellers, buyers get to be owners.<\/p>\n

We tend to think of property as a story about objects, but in Blackstone\u2019s version, it\u2019s the subjects who change \u2013 as a result of their connections with the objects exchanged. Anthropologists describe personhood in hunter gatherer societies as \u201cemergent, constituted by relationships which are not totally given but which . . . must be worked out in a variety of social processes.\u201d\u00a0Nurit Bird-David, Animism Revisited<\/a>. \u00a0In this scheme, there is a social network first \u2013 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 \u2013the person, the subject \u2013 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.<\/p>\n

The modern Western worldview is ostensibly committed to an unchanging dichotomy between persons and property. But in Blackstone\u2019s 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\u00a0Thirteenth Amendment<\/a>\u00a0\u2013 the Constitutional provision that outlaws slavery \u201cexcept as punishment for crime whereof the party shall have been duly convicted.\u201d<\/p>\n

What\u2019s 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\u00a0bailment<\/em>\u00a0as \u201ca delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed by the bailee.\u201d II, 452. In some bailments, the bailor pays the bailee to do something with the bailed object, like cloth \u201cbailed to a taylor to make a suit of cloaths,\u201d or simply to look after it, as when \u201ca 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.\u201d\u00a0Id.\u00a0\u00a0<\/em>In others, the bailee pays for the temporary use of the bailed object, the rented machine or borrowed library book \u2013 or, yes, the accused criminal. That\u2019s why we use the term \u201cbail\u201d for the payment made to spring an arrested person from jail and secure his return to court at an appointed date.\u00a0 It seems the state\u2019s mere possession of arrested persons\u2019 bodies \u2013 very much without their consent \u2014 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\u2019 ties to their original owners.<\/p>\n

Except for horses. According to Blackstone, \u201cthere 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.\u201d II, 450. What to make of this peculiarly immutable tie between horse and human?\u00a0 There\u2019s an obvious opportunity here for a mystical explanation, but Blackstone turns pragmatic.\u00a0 He says the reason for the anomalous rule is that \u201ca 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.\u201d II, 451. I guess it\u2019s 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.\u00a0 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\u2019t begin to explain why any of it works.<\/p>\n

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\u2019s 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.\u00a0 Presiding over the whole iffy set up was a middle-aged \u00e9migr\u00e9 riding instructor, whose formal manners, stereotypical Germanic rigidity and contempt for all things American might predictably have been too intimidating \u2014 or too ridiculous \u2014 for a bunch of Midwestern teenagers, but we revered him. Nor was our faith in Hugo Schroeder\u2019s 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\u2019s army.<\/p>\n

In fairness \u2013 if there can be such a thing in this context \u2013 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\u2019s presence so immediately compelling that we gave little thought to his past.<\/p>\n

Certainly I never had \u2013 and never would have \u2013 a teacher so passionately convinced of the value and beauty of what he had to teach and so transparently horrified by his students\u2019 inability to absorb it. \u201cGet off that horse,\u201d he would cry, \u201cI show you\u201d! Or, worse, \u201cShe<\/em>\u00a0will show you\u201d 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.<\/p>\n

I don\u2019t know what kept me going with horseback riding.\u00a0 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 \u2013 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.\u00a0 But I don\u2019t 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\u2019s the proximity to power and the insular hyper-technical culture mediating my tenuous connections with that power. There\u2019s the specialized language, routines, and apparatus\u2013 blacksmiths and bailiffs, curry combs, injunctions, cross ties and motions in limine. And there\u2019s 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.<\/p>\n

On the landing outside my husband\u2019s studio, I hear him administering a cognitive test over the phone to some subject of the Alzheimer\u2019s research study that employs him.\u00a0 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\u2019s yard.\u00a0 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\u2019t 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\u2019t realize were there. It seems perverse, even cruel, to penalize that capacity in a test of someone\u2019s failing cognition. And it seems to me to be related to complaints about Blackstone\u2019s metaphysical approach to property law.<\/p>\n

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\u2019 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\u00a0rights<\/em>, as opposed to enforceable outcomes, perverted rather than legitimated legal rulings. The transubstantiated property in Blackstone\u2019s\u00a0chapter<\/a>\u00a0is exactly the kind of fantasy Holmes was trying to expose when he wrote that \u201cfor 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.\u201d\u00a0Natural Law<\/a>, 32 Harv. L. Rev. 40, 42 (1918). The men with guns again.<\/p>\n

The conventional wisdom is that Holmes was the leading edge of a skeptical revolution that overthrew Blackstone\u2019s old fashioned view of law. And you might see a kinship with today\u2019s \u201ctextualist\u201d 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 \u2018just the law ma\u2019am\u2019 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\u2019s doctrinal fictions.<\/p>\n

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\u00a0Tenth Amendment<\/a>, whose enactors would have viewed the killing and selling of birds as a matter for state control. But Holmes explained that legal \u201cwords 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.\u201d\u00a0\u00a0Missouri v. Holland<\/a>, 252 U.S. 416, 433 (1920). The Tenth Amendment means more than what its enactors understood. \u201cIt was enough for them to realize or to hope that they had created an organism.\u201d To understand what the constitution allows or prohibits today, the Court has to consider not just the text but \u201cour whole experience.\u201d\u00a0Id.\u00a0<\/em>Holmes is famous for insisting that lawmaking is fundamentally a threat of lethal force. \u201c[A]ll law means I will kill you if necessary to make you conform to my requirements,\u201d he once wrote. Letter to Harold Laski, quoted in\u00a0Alschuler, From Blackstone to\u00a0 Holmes,<\/a>\u00a036 Pepperdine L. Rev. 491, 498 (2009). \u00a0But it seems that, like Blackstone, he was fascinated by what he could not help but conceive as law\u2019s world-creating potential.<\/p>\n

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\u2019d head away from the highway along the fence lines to some woods where we\u2019d 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.<\/p>\n

Published December 8, 2020.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter the Thirtieth. Of Title by Gift, Grant and Contract This chapter\u00a0has a hard time separating fact from fiction.\u00a0 It\u2019s sort of a...<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,79,492],"tags":[490,489,132,200],"class_list":["post-4308","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-jurisprudence","tag-law-and-philosophy","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/sasVL2-horses","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4308","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=4308"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4308\/revisions"}],"predecessor-version":[{"id":4309,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4308\/revisions\/4309"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4308"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4308"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4308"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}