Book the Second, Chapter the Fourteenth. Of TITLE by DESCENT.
This chapter is not about nature. You would think that family inheritance would be an ideal place to root the law of private property in biological and moral necessity. But Blackstone insists that inheritance is not a “natural right.” Instead, if a property owner dies, “the land, by the law of nature would again become common,” available for anyone to occupy and claim. II, 211 This separation of inheritance from ownership makes strange the ordinary American meaning of ‘owning your own home’. And I haven’t even gotten to the strangest part. The chapter goes on to explain that the legal requirements for inheritance can be satisfied with a made-up story that contradicts the real history of the property in question. This bald-faced preference for make-believe made me think again about law’s relationship to fact and fiction.
Over and over Blackstone declares that there is nothing natural about a system that keeps private property in the family after its original owner dies. The default status of property is not continuous private ownership but common access. When a land owner dies, any natural familial connection to the land dies with him. To the extent that Blackstone justifies the law of inheritance, then, he doesn’t claim it follows a morally necessary or natural order. Instead, his point seems to be that because no one has any natural right to inherit anything, the politically expedient laws of inheritance can’t be criticized for passing anyone over: “There is certainly . . . no injustice done to individuals, whatever be the path of descent marked out by the municipal law.” II, 211
When it comes to the blood relations that man-made “path of descent” ostensibly tracks, Blackstone presents a landscape of overwhelming natural proliferation. Two charts of lineal “consanguinity,” demonstrate the “astonishing . . . number of lineal ancestors which every man has, within no very great number of degrees.” Counting back three generations, everyone already has eight ancestors: “the parents of his two grandfathers and two grandmothers, “ and “by the same rule of progression he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth; and [here comes the break with accountable kinship] at the twentieth degree, or the distance of twenty generations, every man hath above a million ancestors.” II, 203 But even this heady multiplication presents an unrealistically organized natural model. Blackstone notes that “so many different bloods is a man said to contain in his veins, as he hath lineal ancestors.” Id. It isn’t a matter of traceable blood lines so much as a swirling, surging mix. There’s no basis here for black letter rules about who gets to keep the house.
Nevertheless, for Blackstone, ownership is still very much a matter of bodies. It’s just that the key corporeal relationship is not between generations but between the owner’s body and the land or house he “possesses” or “occupies.” “The right of property, which is gained by occupancy, extends naturally no farther than the life of the present possessor.” II, 211. By chance, when I came to this chapter, I happened to be reading another book that made a similar point from a different perspective. In Becoming Animal, David Abram proposes that “one’s relation to one’s house . . . is hardly a relation between a pure subject and a pure object – between an active intelligence, or mind, and a purely passive chunk of matter.”  One night Abram realizes that the singular old beams of his house “had been quietly conversing with my creaturely body over the course of the year, coaxing my eyes and my wandering fingers in countless moments of distraction.” Those beams, whose “subtly different dispositions had lent a communal warmth,” helped to instill an “uncanny kinship” he felt with his home.  Abram attributes this palpable interaction to the awakening of his “animal senses.” But, reading this chapter of the Commentaries, it strikes me that he may be missing what his “kinship” with the house owes to our longstanding legal-cultural connection between property and family. Abram’s experience basically flips the cause and effect structure of legal inheritance: instead of acquiring his house through a kinship relation, he develops a kinship connection by living in his house. As Blackstone puts it, “we often mistake for nature what we find established by long and inveterate custom.” II, 11.
Whichever way the causal arrow runs, there’s no doubt that some people develop an attachment that almost seems to animate their homes. If there are houses that are haunted, there are also people haunted by the houses they once occupied. Geographically speaking, my elderly mother now lives near me in Pittsburgh in an assisted living facility. But as far as she is concerned, her home is still the house her father built in New Orleans at 8630 Oak Street, a block from the levee, where she was born and lived till she was in her twenties. It’s a lovely house, compact and all on one floor, built of local cypress wood with high, high ceilings for the heat and a wide front porch. My mother is mostly lost in time and space, and when she does orient herself it is to that house in New Orleans. Still, when I remind her that we all moved from Brooklyn to Pittsburgh when I got the job at the University, it doesn’t seem to come as a shock. She generally accepts the geographical facts with good enough grace. Sometimes, though, she is more confused. “Did anyone tell my father that I won’t be home for dinner”? she’ll ask. She’ll phone me sometimes, asking to be picked up. “I’m here at the church,” she’ll say, “and I just need someone to come get me and give me ride home.” Home is 8630. Usually I’m able to talk her out of it. I remind her that we sold the house in New Orleans 20 years ago, and that her father was long gone before that. “Mama,” I say, “you are 97 years old – how old would your father have to be”? “Too old,” she concedes.
Recently I heard a radio program about a German elder care facility that was having a problem with residents who, like my mother, became convinced that they needed to return home. The woman on the show described these elderly people’s intense agitation—“my parents wait for me,” “my children wait for me.” Like my mother, they were sometimes inconsolable, and occasionally the more able bodied among them would wander away from the group home and get lost. The Germans came up with a remarkable solution: They built a pretend bus stop outside the home – complete with a sign and a bench and a shelter that matched the regular municipal bus stops. Now, when someone becomes agitated and desperate to go home, a staff member will lead her to the bus stop and they will just sit on the bench and wait. They don’t have to do a lot of talking. It’s a recognizable activity, waiting at a bus stop. And the surroundings are apparently nice – the woman on the radio mentioned that you can hear birds. They sit on the bench and wait, and at some point the old people stop waiting for the bus to get home and continue just sitting on the bench in the sun, and eventually they get up and go back inside, perhaps to have some tea. They are led through the pretend bus stop back into reality – or at least into some relatively comfortable sense of themselves in the moment.
When my mother calls me and wants to go home, though, I can never play along. I am resolute that she is who she is and where she is and that has to be okay. It isn’t possible for me to join her by pretending she is a young girl who has to get home to dinner so her father won’t be worried. Playing along feels like a cheat that would make life easier for me and rob her of what little autonomy she has left. But I wonder. Because, actually, you know, it may very well be that my mother really has no idea where she is—and knows that she has no idea. In fact, on reflection, it seems very likely, that the story about being a girl in New Orleans who is at a church supper and needs a ride home is just that – a plausible story that she has invented – perhaps not quite deliberately but not exactly unknowingly either – a story that she uses to comfort herself and to make sense of an otherwise unfathomable reality.
For Blackstone there’s no shame in fiction and invention. Explaining how early lawyers got around the notion that only direct descendants of the original purchaser of property could inherit, he puts the legal artifice right out there: “a method was invented to let in the collateral relations of the grantee to the inheritance.” II, 221 That method was the “feudum novum to hold ut feudum antiquum.” The way this legal fiction works is that we all pretend that the house you bought last week is an ancestral estate that has been in your family for centuries, so that it makes sense that if you die childless, some distant cousins can inherit the house “because they might have been of the blood of, that is descended from, the first imaginary purchasor.” Id.
Okay, stop. Let’s be clear about what Blackstone is saying here. The whole structure of family inheritance—the system of private property preservation he calls “the principal object of the laws of real property in England”—is being justified based on an admittedly imaginary history. Rather than relying on data-driven social policy objectives or falling back on natural connections (blood is thicker than water), Blackstone’s legal players just invented a story.
This is exactly the kind of sleight of hand that Blackstone’s great rationalist critic Jeremy Bentham despised. For Bentham, justifying property rights with imaginary history was either a scurrilous legal trick or just plain crazy. He wanted law to consist of straightforward rules in black and white, transparently designed to facilitate objectively determined policy goals. Legal fictions ruined that kind of rational law-policy connection: “the pestilential breath of Fiction poisons the sense of every instrument it comes near,” Bentham said in his Comment on the Commentaries.  Fictions are dark and twisted, opaque. Transparency was the great good.
But clear legal rules avowedly designed to carry out deliberately chosen policies have a tendency to obscure another aspect of law, namely, the way law helps to construct the world it ostensibly regulates. Pretending, on the other hand, steers away from fact and shows us another kind of truth about ourselves. So long as we know we are pretending, pretend justifications show us that the law we follow is not necessarily grounded in either moral right or objective empirical observation, but is rather the product of human invention. Blackstone cheerfully acknowledges law’s power to fabricate as well as regulate the society whose policies are at stake. So at the same time that Blackstone lionizes the private property status quo, his approach presents property law as something that came about through human choice and that can, and perhaps should—by choice—be changed. And if law based on pretend history changes, the new law can be every bit as legitimately authoritative as what now looks so authoritatively, naturally right.
But, you say, someone has to be in charge. Someone has to keep her wits about her and say “okay, it’s time to go home now,” and actually know where home is and how to get there in real time and space. And isn’t law supposed to be that practical adult in full possession of her faculties, who knows what time it is, who can tell north from south and right from wrong, and brings us back to face reality, rather than letting us stray farther and farther into make believe, like imaginative children or a delusional old woman making up stories to comfort herself? Maybe. But then you get back to those millions of ancestors, those talking beams and all those swirling, surging bloods, and who is ever going to take charge of that?