Book the Second, Chapter the Eighteenth, Of TITLE by FORFEITURE.
This is one of those chapters where Blackstone revels in the tricks of the legal trade. Nominally, it’s about forfeiture doctrine – that is, the rules by which property is lost as punishment for “some illegal act, or negligence, in the owner of lands.” (II, 267) But the main thrust here is the great artifice of law, and the ins and outs of a system of property rights designed to survive our individual demise. So this also turns out to be a chapter about mortality. No surprise there, I guess. A chapter about forfeiture is a chapter about loss.
I must have heard the expression, ‘nothing’s certain but death and taxes,’ about a million times, but it wasn’t until I read this chapter that it occurred to me that these two phenomena are not just similarly unavoidable but causally linked. As Blackstone reminds us, in feudal society all land grants were for the life of the individual recipient only. Every feudal landholder’s death precipitated a transfer back to the lord, or his descendants, and a redistribution – all of which occasioned various payments and fees that amounted to taxes on the property. So, where there was death, taxes were sure to follow. Here, of course, is where the craft of lawyers comes in. You might think taxes would be easier to avoid than death, but medieval lawyers attacked the problem from the other side. Their solution was to create a kind of legal person who would never die, and so would never transfer land and have to pay taxes. That legal person was, of course, the corporation.
These days we worry about corporations getting too big and too powerful, and influencing politics in undemocratic ways, see Citizens United. But whatever political problems they may cause, corporations are generally figured as the lifeblood of a healthy economy. Blackstone worries about corporations, especially charitable corporations, lasting too long, that is, indefinitely, and interrupting the circulation of property’s fruits and profits.
The chapter opens with six pages on the 500-year-long battle of wits waged between Parliament and the church to collect/avoid taxes on land held by the church corporations. Naturally, as Blackstone points out, this was actually a battle between Parliamentarians and lawyers for the churchmen, “who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get.” (II, 270) The state’s main legal tool for keeping land out of the tax-free hands of the church was a license in mortmain – a dead-hand license, so called because land sold to the church effectively ceased all circulation. No more circulation, nor more life.
Reading this, I couldn’t help thinking of private colleges and universities. Some time ago, I heard the president of Vassar College on the radio celebrating the increased “economic diversity” of her college’s student body. Vassar has an endowment of over 800 million dollars and by my rough calculations from the website is taking in another 60 million a year from tuition, but as a non-profit corporation is exempt from most property taxes. That of course means that to some extent, the experience Vassar offers its students is being subsidized by the rest of us taxpayers.
A lot has been written about the high price of college lately. The Vassar president explained that it is hard to keep costs down because elite colleges compete for the progeny of the economically privileged who are “investing a lot in their children.” These families want “great things” for their kids, including “lots of single rooms, and great faculty, and small classes.” Standing in my kitchen, slicing a tomato and listening to this out of the corner of my ear, I thought, Single rooms? Really? Spending on financial aid, the Vassar president continued, means cutting back on other things. Apparently not on single rooms, though. The Vassar website informs me that “a high proportion” of dorm rooms are singles.
I know I shouldn’t be surprised by this. I teach property law, and I’m forever pointing out to my students the tight, tangled connections in the United States between private real estate and personal identity. But honestly it kind of blows my mind that with all the outrage about income inequality, lack of access to educational opportunity, and the insane cost of college these days, single dorm rooms are still regarded as one of the indispensable “great things” a top quality college has to offer. It’s just that it enacts the basic privilege of exclusion in such a primitive way that it’s almost funny.
I don’t mean to single out Vassar. The whole reason Vassar’s president was being interviewed on the radio show I happened to catch is that the school is a standout for its efforts to broaden its student base. Harvard admits a lower percentage of low and middle-income students and is sitting on an endowment of over 30 billion tax-free dollars. Plus, all of this has a nitpicking quality. The real question, I suppose, is what becomes of all the resources poured into the young people who attend these schools. To return to Blackstone’s framework, we might ask whether the fruits and profits of all that tax free property ever emerge back out into the wider world. Clearly the answer is yes. Harvard and Vassar grads have cured diseases, solved engineering challenges, written great poetry, sung great songs, worked to bring about transnational peace accords, and served as national and international leaders, including, of course, our current POTUS.
Still, there’s reason to think the dead hand metaphor may have some continued relevance. In the spring of 2014, precious few of Harvard’s graduating seniors were going to public interest jobs. Only “3.5 percent were headed to government and politics, 5 percent to health-related fields, and 8.8 percent to any form of public service.” Washington Monthly And it’s not just a question of opting for more commercial paths. In the mid to late twentieth century ivy league grads interested in corporate careers “tended to choose management training in industrial, aerospace, or chemical industries.” Now, not so much. Today nearly a third of Harvard graduates go to financial jobs on Wall Street or work for one of the big corporate consulting firms, like McKinzie and Bain, where, presumably, there talents will circulate in a very narrowly elite market indeed. Maybe the picture of a gnarly old hand squeezing shut the channel through which these resource-laden young graduates pour back out into the world is not so far off after all.
This chapter makes clear that the whole dead-hand problem is a function of a foundational property law concept: the idea that property rights extend over time. It is only because of the great common law invention of inheritable estates that we face the dead-hand problem of property’s failure to circulate. Then again, it is only because of the concept of estates in time that property can defeat death.
In a sense the very notion of property rights, rather than sheer violent control, a vision of how things should be rather than just the way they are, begins with ownership over time. This may be hard to see today, because in mainstream U.S. culture desire for real estate is mostly figured in space and stuff. It’s all about the square feet and original detail. But Blackstone and the common lawyers who came up with the legal rules that still inform today’s property concepts were obsessed with “estates in time.” I try to imagine the moment (of course it wasn’t a moment; it must have been a long spotty period) when the idea took hold, when people realized that they could construct an institution of land holding that extended beyond immediate occupancy into a continuous future beyond an owner’s lifetime. How must that have felt? In my imagination it is slightly disorienting, and kind of hysterical.
By coincidence, at the same time I was reading this chapter I was finishing the first book in Karl Ove Knausgaard’s absurdly long and meandering series of autobiographical novels, My Struggle. Here is what the narrator Knausgaard has to say, as he views his father’s dead body for a second time: “Now I saw his lifeless state. And that there was no longer any difference between what once had been my father and the table he was lying on, or the floor on which the table stood, or the wall socket beneath the window, or the cable running to the lamp beside him. For humans are merely one form among many, which the world produces over and over again, not only in everything that lives but also in everything that does not live, drawn in sand, stone and water.” Book I, 441.
Reading this it struck me how perfect it is – was, to construct a legal triumph over human mortality by investing these inanimate things with human identity through the idea of ownership. It’s a cliché by now to point out that our system of inheritance functions as a way for people to achieve a kind of immortality, or at least to strive toward a kind of fictional substitute. But what we don’t think about, or, I didn’t, anyway, until I happened to read Blackstone and Knausgaard in the same week, is that this immortality is achieved through a means that is far from accidental. What I mean is, that the symbolic immortality here has a double meaning, because not only does the person who dies manage to live on in some way through passing down her property but, at the same time, as property, the material world – the sand, stone, and water and even the electrical sockets – acquires a life, or afterlife.
Once again I’m forced to consider how much our modern legal consciousness has in common with animistic practices that connect the living and the dead through various forms of “possession” and “invest” the space a person occupies with her spiritual identity. This rather magical identification may explain how I’ve been feeling recently about my own house. I’ve never been a particularly meticulous housekeeper, to put it mildly. But lately, dirt fills me with dread. I’m looking now at the streaky window by the sofa where I’m writing and the slightly dingy curtains, and the sight of this unkept stuff is almost more than I can bear. The insouciance of youthful chaos is entirely absent here. I have a premonition of things coming apart, body and mind and spirit separating in the sandy bed sheets, the stain on the formica; entropy coming for us all.
Something has to be said here about the property law doctrine of waste, which Blackstone introduces in this chapter. Waste is “a spoil or destruction in homes, gardens, trees or other corporeal hereditaments to the disherison of him that hath the remainder or reversion in fee simple or fee tail.” 281 In other words, if you have a right to live on land or in a house for a limited time, for instance on a lease for a term of years, or as the owner of a common law “life estate” (meaning that the property is yours until you die), then you can’t do, or not do, something that ruins the property for the person entitled to it after you are gone. Note that this is not just a question of actively looting or destroying a place. As Blackstone puts it, waste is not just “pulling down a house,” but also “suffering it to fall for want of necessary reparations.” (II 281) Waste can be a simple lack of maintenance, giving entropy free rein.
Nor is the prohibition against waste just a matter of preserving value. Even profitable alterations are forbidden. It’s a question of transformation, of changing or erasing the identity of the land from which the estate springs, so that the property becomes unrecognizable.: “The conversion of land from one species to another is waste. To convert wood, meadow or pasture into arable, to turn arable or woodland into meadow or pasture; are all of them waste.” (II, 282) Why? Because it changes “the evidence of the estate.” Id. This seems literally to mean that such a change might make it harder for the person entitled to inherit the property to prove ownership. And I suppose that could be true in a system where land parcels are identified not by surveys and GPS coordinates but descriptively. But as is often the case in law, it is hard, if not impossible, to separate the proof of the right from the right itself. If you’re entitled to inherit a meadow and the meadow disappears and in its place there’s a wood someone might ask if you’re entitled to anything at all. What you were in line to get seems to have changed and in a system that constructs individuals’ identities through their relationship to lasting landscape, that’s a big problem.
The social free fall linked to the sort of landscape transformation that counts as waste makes an appearance in one of the few English texts more famous than the Commentaries, Shakespeare’s Macbeth. Recall the last prophecy Macbeth receives (from an apparition in the shape of a child holding a tree) that “Macbeth shall never vanquished be until Great Birnam Wood to high Dunsinane Hill Shall come against him.” Act IV, Scene 1. Is this not a kind of shock-and-awe version of converting woodland into meadow and meadow into wood? Macbeth responds in an odd third-person speech that I now see is suffused with the morality of common law inheritance and its power to animate ordinarily inanimate objects. He declares that because an uprising of trees is unthinkable, “our high placed Macbeth shall live the lease of nature, paying his breath to time and mortal custom.” Id. It’s as though he’s looking down the wrong end of the telescope at the metaphor coupling hereditary property and immortality. Instead of seeing ownership of an inheritable estate as a way to conquer death, Shakespeare’s doomed anti-hero figures his human lifespan as a temporary form of property, the kind that is subject to waste, a natural “lease” that he must “pay” with his breath to the landlord time. Literally, as a great lord, Macbeth certainly owns inheritable property. But he has no children. More to the point, Macbeth is nothing if not narrowly self-absorbed, obsessed throughout the play with enhancing his own immediate position with no thought of lasting consequences. With no sons to whom his property could pass, and with no apparent concern for establishing his succession, Macbeth is not in a position to take advantage of the common law invention of estates in time. Live by the ethic of fleeting individual triumph, die by it. Having opted out of the whole social system of inheritable property rights, all the land and power in the world cannot help him transcend the mortal “lease of nature.” Ultimately, of course, the landscape does move against him, and even that limited lease is cut short.