The Subtle Irony of Cultural Property in Harry Potter and Cultural Property IN Harry Potter 4


One of the many projects I have been working on this summer is writing a paper on the Property theory present in the Harry Potter novels (titled When Chattels Choose).  One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. In the legal world, we see ambiguity in property most visually resolved in torts landscape — nuisance as the ever developing tool of property allocation.   We could even argue (as I will later this year) that nuisance theory is quite akin to intellectual property disputes.

For now, lets turn to how property disputes are resolved in the Harry Potter world.  Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes. Let me offer just a few examples:

  •  After Sirius Black dies and Dumbledore informs Harry that he is the heir of 12 Grimmauld Place, Dumbledore considers it questionable whether Harry is actually entitled to Grimmauld place and asks Harry to perform a simple test to determine his legitimacy.   The property orients itself to its proper frame of ownership, regardless of the will of the previous owner and notwithstanding the acts or non-acts by the party actually entitled to ownership.  See Harry Potter and the Half Blood Prince
  • Wands “choose” the master.   And wands may be reoriented if “captured” properly.  Consider the distinction between Harry disarming Draco Malfoy to become the master of all wands that Draco Malfoy was master of (including the Elder Wand) and Voldemort killing Severus Snape expecting to become master of the Elder Wand thereby.   The wand simply chose whose conquest mattered more for the purposes of its loyalty.  See Harry Potter and the Deathly Hallows 
  • The Sword of Gryffindor is described as cultural property by two different characters. First, the Minister of Magic Scrimgeour, after informing Harry that he was given the Sword as a part of Dumbledore’s will, later informs him that the sword is not susceptible of ownership.  Rather, the sword is cultural property which may present itself to any Gryffindor.   Interestingly, the Goblin Griphook describes the sword as cultural property, though not that belonging to Gryffindors, but belonging to Goblins, since they made the sword.  The sword apparently chooses the cultural affinity of its ownership by choosing Harry and then later choosing Neville Longbottom.  See Harry Potter and the Deathly Hallows
  • Snitches (the golden balls used in quidditch games are said to have “flesh memories. As Scrimgeour says to Harry: “ A snitch is not touched by bare skin before it is released, not even by the maker, who wears gloves.   It carries an enchantment by which it can identify the first human to lay hands on it, in case of a disputed capture.  This snitch” — he held up the tiny golden ball – “will remember your touch, Potter.” Harry Potter and the Deathly Hallows

There are no doubt others, but what seems clear is that property has the capacity of choice in the world of Harry Potter.  That impartial choice acts as the great equalizer that by forcing “fair” redistribution of property according to certain characteristics and with certain presumptions of fairness.  First, it seems the the magical world is not adverse to basic rules of construction that equate to fairness.  First capture of the snitch equates to fleshly connection upon first capture; capturing a wand fair and square gives one rights in the wand (and others apparently); and property may be passed from one wizard to another according to expectations that they have.  These rules are mirror images of our world of property allocation with the exception that magic alleviates the need for dispute resolution — the property simply knows to whom it should belong.  Unlike a fox or whale, which may be fairly disputed who began the pursuit, who caused the capture, or whether the party who secured the bounty did so fairly, the magical world’s fairness quality is determined not by ambiguity, but by clearly choosing chattels.

What caught my attention, though in thinking through this scheme is the irony of property choice theory that ceases to exist outside Rowling’s magical world.  Again, consider the most obvious form of cultural property — the Sword of Gryffindor.   One could draw an analogy to Rowling’s own work as being cultural property — surely Harry Potter is very much with all of us as it was with Rowling for so long.  So when a pair of seemingly different (but inextricably similar) lawsuits involving JK Rowling’s intellectual property in Harry Potter surfaced in 2010, one could not help but wonder about the irony.

In the first lawsuit, holders of the copyright to Adrian Jacob’s book Willy the Wizard  sued Rowling for Plagiarism claiming that many elements were taken from his earlier (1987) book, including elements of the plot in Goblet of Fire, the presence of the Wizarding Train, a wizarding prison, and human hostages inside a bathroom.   In the second lawsuit, Rowling herself along with Warner Brothers brought a lawsuit against a New York Librarian who operated the Harry Potter Lexicon Website after the website began promoting a print version of its website.    Slate.com offered the following analysis of the second lawsuit:

For a fan to write this kind of entry, Rowling says, is to “take the author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain.” But that’s ridiculous. This and other entries aren’t, as Rowling seems to suggest, anything like an abridgment of the originals. No one would read the Lexiconas a substitute for the Potter books; it is useless unless you’ve read the original, and that makes all the difference.

These two examples offer a crash course in the dissonance that exists between Rowling’s magical world and her non-magical world.  Arguably, the magical world would have a means of chattel based choice to decipher the propriety of the actions.   Unfortunately, the law offers no perfect wisdom like that of chattel-based choice.   I might argue that Rowling takes on both characteristics in the disputes around the Sword of Gryffindor in her two law suits.  In the plagiarism suit, Rowling appears to be the wide-eyed, perhaps naive recipient of cultural property, claiming innocently, that they simply chose her as a worthy recipient.  What defines the rightful wielder of the sword is courage in the novels — courage, which no doubt Rowling took on in publishing her stories from the outset.   But in the latter case of copyright, Rowling seems to take the disposition of the more calculating goblin Griphook, claiming her entitlement to own, and therefore prevent others from claiming an interest in her cultural property.

What we do know is that artists use and reuse the works of others. This is clearly described in works far and wide — as scholarly as Jamie Boyle’s The Public Domain, Larry Lessig’s Remix, and blog writers the world over.

Comments are welcome.

The Devil and Tom Walker: A Property Tale — Part II: Property as mediator of human conduct 1


In my first post, I described how the landscapes shape the relationships in the Devil in Tom Walker.   Today, I am going to look at elements of the story that focus on the relationships of people to property.   To do so, lets pick up the tale where we left off.  In fact

As Tom returns from his encounter with the Devil, he reluctantly tells his wife of his encounter.  As we described in the first post, the relationship between Tom and his wife is centered around their individual quest to hoard property; there is no community action between the two.  What might seem to be an attempt to partner with her husband is really a selfish push to allow Tom Walker to absorb the risk of dealing with the devil for the mutual benefit of the gold.  But Tom remained determined to not “be damned to please her.”  The wife not to be deterred, attempts to negotiate with the Devil herself.   After her first attempt is unsuccessful, she returns offering all of their valuable chattels to the Devil — their silver teapot, silver spoons, and other belongings.  Later Tom, when he goes to look for her, discovers her apron with a heart and a liver tied in it.

As before, when the wife and Tom bickered over stashed items, Tom’s pursuit of his wife is more about retrieving the things she took than it is about retrieving her from Old Scratch.  Its even unclear whether Tom sought after her; though the author seems to believe he did.   Whatever the case, the story is clear that Tom was not remorseful for his wife’s loss.  “Tom consoled himself for the loss of his property with the loss of his wife; for he was a man of fortitude. He even felt something like gratitude towards the black woodsman, who he considered had done him a kindness.”  Notice how property in this last instance mediated the relationship (the broken relationship) between Tom and his wife.    Tom’s dissatisfaction of losing property is ameliorated by the loss of his wife — as if the spouse were another piece of property to be bargained away.

Ironically, though Tom does not have trouble accepting the loss of his wife as a good bargain for property (thereby reducing her to property to be bargained), he finds the Devil’s suggestion that he engage in the slave trade to be distasteful.  Tom’s distaste is difficult to explain.  His willingness to part with his spouse for a few chattels suggests he has no problem equating humans with economic value — as long as those humans are as wretched as his wife.  Likely, Tom’s reluctance to engage in the slave trade is a commentary by Irving on the moral choices made by slave opposed states.   The story is set in Massachusetts and was written in 1824.   This  should not be taken that Irving was particularly opposed to slavery.  As Kenneth Reed has pointed out, Irving was rather agnostic towards the plight of African Americans, and often used them in stories as a means of pointing to fallacies in his white characters — like Tom Walker.   In this instance, let me proffer a theory.  Massachusetts, and Boston were the sources of many anti-slavery advocates, like William Ellery Channing, William Lloyd Garrison and David Walker, who published his Appeal to the Colored Citizens of the World in 1829.  Though both Garrison and Walker come several years after the publication of the Devil and Tom Walker, there was brewing before that a sentiment that Boston was an anti-slavery society.

Much of the Bostonian view was symbolized in the preacher William Ellery Channing.   It is no accident that Irving has Tom Walker establish a usury business using pirate gold in Boston, and thereby become a respected member of the community, while refusing to take part on the tasteless activity of the slave trade.  Irving is pointing out the North’s hypocrisy in turning a blind eye to deeds that take advantage of others through ill-gotten or less-than-honorable means, while condemning the slave trade of the South.  In fact, we see as much glee in Tom Walker’s acceptance for opening a broker shop as a usury lender as he showed distaste for the slave trade.

“You shall open a broker’s shop in Boston next month,” said the black man.

“I’ll do it to-morrow, if you wish,” said Tom Walker.

“You shall lend money at two per cent. a month.”

“Egad, I’ll charge four!” replied Tom Walker.

“You shall extort bonds, foreclose mortgages, drive the merchant to bankruptcy-“

“I’ll drive him to the d–l,” cried Tom Walker, eagerly.

“You are the usurer for my money!” said the black legs, with delight. “When will you want the rhino?”

“This very night.”

Tom Walker then finds a successful career as a money lender.   His success is built on the failure of others, collecting large sums against defaulting lenders.  More than a few commentators have found allusions to the world of Tom Walker and our current lending climate (or at least the climate a few years ago). For Tom, though, the gold shapes his interactions with his clients.  It affords him the opportunity to be lenient, which he refuses.  Likewise, it shapes his revival as he realizes his soul will be called shortly, much like the loans for which he is calling.

At this propitious time of public distress did Tom Walker set up as a usurer in Boston. His door was soon thronged by customers. The needy and the adventurous; the gambling speculator; the dreaming land jobber; the thriftless tradesman; the merchant with cracked credit; in short, every one driven to raise money by desperate means and desperate sacrifices, hurried to Tom Walker.

Thus Tom was the universal friend of the needy, and he acted like a “friend in need;” that is to say, he always exacted good pay and good security. In proportion to the distress of the applicant was the hardness of his terms. He accumulated bonds and mortgages; gradually squeezed his customers closer and closer; and sent them at length, dry as a sponge from his door.

As with the miserly house from the first part, Tom’s property begins to reflect the condition of his soul. Tom “set up a carriage in the fullness of his vain glory, though he nearly starved the horses which drew it; and as the ungreased wheels groaned and screeched on the axle trees, you would have thought you heard the souls of the poor debtors he was squeezing.”
And Tom knowing the state of his soul does not seek mercy but seeks to best the Devil — yet another contrast to those in the social order that Tom is distancing himself from.   He attempts to out pious the pious and in fact leads them to believe he is more pious than they.  At the end of the day, its Tom’s failure to show mercy that warrants him no mercy from his own usury lender of the soul.
What is important from a Property perspective is the role that property plays in shaping the social relations around Tom Walker.  Property becomes the mediator between his wife and the devil; it becomes the mediator between illicit activities and Tom; and it becomes the mediator (or the stage) upon which Tom’s religion is played out.   In short, The Devil and Tom Walker illustrates the role of Property in shaping human interactions.
Here are some discussion questions like the last post.  What other questions would you raise?


Some Questions for Students Following Tom Walker:

Drawing on Justice Marshall’s opinion in The Antelope, how is Tom Walker’s moral position on slavery similar to Justice Marshall?  How is it different?

We talk about Property being primarily about “relationships amongst people to things;” is Property the primary tie between the characters?  Is there something else?

The Devil is primarily a bailor with respect to the pirate gold.  If Captain Kidd indeed never returned, should the Gold be treated as abandoned property?  Should it be treated as treasure trove?  Why?

Should we understand this story as a critique of the financial lending market?   Why or why not.

For more information See Kenneth Reed, Washington Irving and the Negro, Negro American Literature Forum (1970).

The Devil and Tom Walker — A Property Tale 4


I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

“Excuse me, I believe you’re in my pew:” Servitudes and Church Pews 2


So I have been doing some work on the meaning of place in defining the sacred and have considered how people claim space in religious venues. [You can take my survey here].  One of the more interesting entanglements of English legal history is how church pews became treated as a servitude to one’s real property.  Of course, England was not alone in this regard.  As Kelly Olds writes in her article Privatizing the Church: Disestablishment in Connecticut and Massachusetts, prior to disestablishment in America, pews were taxed.  Afterwards, they were auctioned in order to raise money for the church’s work.  It seems that entitlement to space in church has long been a problem.

But the English had a particularly… well… property way of resolving the problem.  I discovered an english treatise on… yes… property law surrounding church pews.  The work: Church Pews, Their Origin and Legal Incidents with Some Observations on the Propriety of Abolishing them in Three Chapters, by the esteemed lawyer John Coke Fowler (See notes below for information on Fowler). From the treatise:

 “We have also heard that the parishioners of divers places do oftentimes wrangle about their seats in church, two or more claiming the same seat; whence arises great scandal to the Church, and the divine offices are sore let and hindered: wherefore we decree that none shall henceforth call any seat in the church his own, save noblemen and patrons; but he who shall first enter, shall take his place where he will.”

So what, do you say is the best way to establish your entitlement to a particular pew?  Property, of course.  Again from the 1846 treatise:

Again, as an example of the practice amongst private individuals of obtaining grants of separate and distinct seats for themselves and their families before the fashion became general, I will adduce a faculty, dated in 1579, for the erection of a pew in the church of Chesterton, in the county of Cambridge, part of which I quote from the same source. It is granted by [14/15] an officer of the Bishop of Ely, and sets forth that the churchwardens and another parishioner of Chesterton appeared on a certain day before him, and stated in writing that “Thomas Lorkine, or Larkin, gentleman, Doctor in Medicine, and Regius Professor in the University of Cambridge, had held for five or six years past freehold property in the aforesaid parish, equal in extent to that of any other parishioner: and that up to that time no seat, or place, or stall, had been granted to the said Thomas Larkyn, suitable to his rank, estimation, and property in the aforesaid parish-church. Which premises considered, they judged it most convenient that the said Thomas Larkyn, his wife and heirs, should for ever sit apart and by themselves in a place on the north side of the church nearest the chancel, on the left hand of the chancel-door, next to the chapel where John Balfude, gentleman, hathbeen wont to sit during the time of divine service; from east to west the space to be assigned to him containing eleven feet, from north to south seven”

A pew still stands in Barking Church, Suffolk, bearing date 1601; another in St. Mary, Geddington, in the county of Northampton, dated 1602, and the building of pews went on increasing as we approach the civil war. The Cambridge critic quotes the following entry of [15/16] 1611 from the St. Margaret’s accounts. “Item: paid to Goodwyfe Wells for salt to destroy the fleas in the churchwardens pew 6d.;” which not only shows, as he justly remarks, that pews were even then baized, but also proves that they were not an entire novelty at that time.

Lastly, to show the period at which pews came into general use, I refer to a letter of Dr. Corbett, Bishop of Norwich,written to his clergy in 1622, in which he says, “Stately pews are now become tabernacles with rings and curtains to them. There wants nothing but beds to hear the word of God on: we have casements, locks, and keys, and cushions, and for those we love the church. I will not guess what is done within them: who sits, stands, or lies asleep at prayers, communion, &c.; but this I dare say, they are either to hide some vice, or to proclaim one; to hide disorder, or to proclaim pride.” So in the orders and directions of Bishop Wren, issued in the Diocese of Norwich in 1636, it is directed “that no pews be made over high, so that they which be in them cannot be seen how they behave themselves, or the prospect of the church or chancel be hindered; and therefore that all pews which do much exceed a yard in height, be taken down near to that scantling.” [See note to Archdeacon Hare's primary Charge, p.50.] [16/17]

In general, the entitlement to seating in a church in English Common Law was perceived to be a common right of the parishioners.  That is, the community held the same equal right of access to sit wherever they like.  But some instances warranted greater certainty of seats for some over others.   So how does one enforce such expectations (you know, without being so tacky as having the pastor withhold holy communion from someone that won’t agree) — property. And particularly, either creating a servitude or a prescriptive claim.   Again, from the treatise:

A faculty, which in these cases either actually exists, or is supposed by the law to have existed, is the instrument by which some privilege is granted to a man by the favour and indulgence of ecclesiastical authority, and in the case of church seats is, generally, a license granted by the ordinary, or some officer to whom the bishop delegates his authority in such matters, to a certain person and his heirs, being owners and inhabitants of a certain dwelling-house, for him, and them, and their families, to sit, stand, and kneel, in a certain pew, in the church of the parish in which the house is situated, during divine service, exclusive of all other persons whatsoever. The form of the instrument may vary, but in substance it ought [27/28] always to annex a certain pew (whether already built, or about to be built, by virtue of the same faculty,) to a particular dwellinghouse; as the annexation of a pew to the person of the grantee, (or party to whom the faculty is granted,) though it has not unfrequently been attempted, is, in fact, invalid in law. These instruments are at present not often applied for, or granted; but when a faculty for appropriating a pew is required from the ordinary, notice must first be given in the church, calling upon the incumbent, churchwardens, and parishioners, to show cause why it should not be granted; and if no good cause is shown, in due time the faculty is issued….

Thus it has been said by an eminent judge, Lord Tenterden, that “in no case has a person the right to the possession of a pew, analogous to the right he has to his house or land, for trespass would lie for injury to the latter, but for intrusion into the former the remedy is by action on the case. That furnishes strong reason for thinking that the action is maintainable only on the ground of the pew being annexed to the house as an easement, because an action on the case is the proper form of remedy for disturbance of the enjoyment of any easement annexed to land, as for instance, a right of way,” &c. [Mainwaring v. Giles, 5 B. & Ald. 362. And again in the same case, Mr. Justice Holroyd [36/37] remarked, that “the mere right to sit in a pew is not such a temporal right, as that in respect of it an action at common law is maintainable. Where a right is annexed to a house in the parish, an obstruction to that right is a detriment to the occupation of the house, and I apprehend it is only on account of the pew being annexed to the house that the temporal courts can take cognizance of an intrusion into it.”

Like one’s driveway that borders another’s property, one’s pew could be treated as a right attached to one’s home.   Who knew?  Similarly, simply being there longer could also establish a claim to the pew:

A title by prescription is a title to property corporeal or incorporeal, (that is, to the realty or land, or to mere rights, as distinguished from the ownership of land, exercisable over, or by means of, the land of another, such as a right of way, or of common,) acquired by unobstructed usage and the lapse of time, and which, in the absence of any circumstances tending to repel the usual inference, the law supposes to have had a valid commencement. [Prescription is a term derived from the Roman law, and is nearly the same as usucapio. There were different periods recognized as making the title by usage respectively inchoate and complete; "longi vel longissimi temporis praescriptio;" which is accurately illustrated by the provisions of the Prescription Act, 2 & 3 Wm. IV. c. 71.] ….And thus when [30/31] long enjoyment, and the tacit acquiescence of all other interested parties, are proved, then, whatever the nature of the conveyance, grant, or transfer, which is necessary to pass the thing in question directly, may be, the law presumes that it once existed, and was, in fact, the commencement of the title in dispute.

In general, long length of tenure, plus exerting money for the repairs and maintenance of a pew (as long as one owned property in the parish — very important) created an entitlement to the pew.   And as a most curious exception, one need not prove repairs with regards to aisle seats.  [Did they not appreciate the kind of high end real estate exists at the aisles?  Apparently not...]

There is one other case, in which, in setting forth a prescriptive title to a pew, it is not necessary to allege reparation. It is where a person prescribes for a seat in an aisle. Here, even in a dispute with the ordinary, it is not essential to allege in the declaration that the claimant has done any repairs. For, in the first place, the law regards aisles, chapels, and lesser chancels as minor parts, or adjuncts only of churches, and as differing in origin and legal properties from the nave or body; and in the next place, it considers that the title may be derived from the circumstance of the claimant [45/46] or his predecessors having been the founders of or contributors to the building of the aisle; and hence it liberally presumes that the claimant does repair, without requiring from him an allegation of that fact ‘

So, the interesting issue that I think this piece raises is the question of legal entitlements used to alter social expectations or to enforce social expectations.    Have you ever sat in someone else’s preferred seating at church?   If so, I’d love to hear about your experience.  Please post comments below. In my next post, I will describe how we protect sacred space — both legally and non legally.

A couple of notes:

I am not sure who John Coke Fowler was, but his son was William Ward Fowler –  memoir available here.    Also, googling his name, he wrote wrote on many aspects of the law, including the entanglement of William the Conqueror and the Feudal System, and on coal law in his work Collieries and Colliers. He also wrote other works on the disestablishment including: Disestablishment: A Church Catechism.   Incidentally, if you like your treatises in hard copy, you may also purchase Church Pews, Their Origins and legal Incidents, here, through Amazon here.]

For more information on American Disestablishment see Kelly Olds, Privatizing the Church: Disestablishment in Connecticut and Massachusetts, 102 Journal of Political Economy 277 (1994).  

Image: Church Pew with Worshipers, Van Gogh (1882).

Nullem Tempus Currit Contra Regem and the King’s Two Bodies II: Time and Temporal Reflections 1


The legal fiction of the King’s Two Bodies had far reaching consequences — including creation of legal doctrines that are still honored today in various forms (like adverse possession against the state).   Importantly, the development of the king’s temporal exclusion is seen most clearly through the lens of property claims on inalienable property held by the crown.  Ernst Kantorovicz describes the emergence of prescription claims in England and their connection to the inalienability of kingly lands:

The English royal judges of the twelfth century most certainly were familiar the legal concept of prescription, which had capital importance in canon law and to which Graetian in his decretum devoted a whole section on which naturally the Decretists commented over and over again.  But the English judges apparently saw no need in themselves to reflect upon the idea of prescription, since they seem to not mention it at all.  This indifference towards prescription changed in the following century: Bracton dealt repeatedly, and in a scholarly manner, with the principle Longa Possessio Parit its, “long possession creates right.”… By [Bracton's] time reflections upon claims to prescriptive possession had become momentous to the royal judges.  In fact, prescription attained actuality within the public sphere once a certain complex of royal lands and rights had been set aside as “inalienable.”  In that moment, prescription and the prescriptive effects of time acquired considerable importance because they clashed, or might clash, with the notion of inalienability.  That is to say, the royal judges frequently faced situations in which they had to decide not only whether or not a private person could legally claim possession by prescription, but also to what extent such claims would affect royal rights and lands which were labeled “inalienable.”

It is this combination of the declaration of lands as inalienable, with the possibility that such declaration could be undone by the inconvenient reality of private long-term possessors, that forced the royal jurists to consider the nature of the king when claims of time were levied against him.  But just as the king’s duality allowed him the temporal supremacy necessary to defeat prescriptive claims against the inalienable lands (lands that would be defined further under Henry II, and which in oath the King swore to protect, preserve and recover); the king’s duality also recognized that the king was subject to prescription whenever “res non its sacra” or things less holy were concerned — things like tolls, manorial jurisdiction which fell outside the ancient demesne.”  Thus, the King’s two bodies was truly dualistic — completely perfect when it came to matters of the king’s realm, and yet completely subservient when it came to matters which were outside the king’s realm.  Kantorowicz again summarizes this nicely:

[I]n some respects the king was under the law of prescription; he was a “temporal being,” strictly “within time,” and subjected, like any ordinary human being, to the effects of time.  In other respects, however, that is, with regard to things quasi sacrae or public, he was unaffected by time and its prescriptive power; like “holy sprites and angels,” he was beyond time and therewith perpetual or sempiternal.  The king, as least with regard to time, had obviously “two natures” — one which was temporal and by which he conformed with the conditions of other men, and another which was perpetual and by which he outlasted and defeated all other beings.

Nullem Tempus Currit Contra Regem and The King’s Two Bodies: Foundations of the Duality 3


Today I wrap up teaching one of my favorite subjects in Property (ok I like them all) — Adverse Possession.  One of the topics we cover is adverse possession claims against the state.   Traditionally, Adverse Possession claims against the state did not stand.  This tradition in the common law stretches to the concept of the King’s duality, the King as Corporation as F.W. Maitland would refer to it, or simply The King’s Two Bodies as eloquently stated by Ernst Kantorowicz.   As Justices Southcoate and Harper in the case Willion v. Berkley said (as reported in Blackstone):

The king has two capacities, for he has two bodies, the one whereof is a Body natural, consisting of natural members as every other man has, and in this he is subject to Passions and Death as other Men are; the other is a body politic , and the members thereof are his subjects, and he and his subjects together compose the corporation as Southcoate said, and he is incorporated with them, and they with him, and he is the head and they are the members, and he has the sole government of them; and this body is not subject to Passions as the other is, nor to death, for as to this Body, the King never dies, and his natural death is not called in our law, the Death of the King, but the demise of the King, not signifying by the word demise that the body politic of the King is dead, but that there is a separation of the two bodies, and that the Body politic is transferred and conveyed over from the Body Natural now dead, or now removed from Dignity royal, to another Body natural.   So that is signifies a removal of the Body politic of the King of this realm from one Body natural to another.

But perhaps the most famous iteration of the King’s two bodies comes from a case involving Edward VI’s lease of certain lands in the Duchy of Lancaster.   The land in question was considered to be the private lands of the Lancastrian Kings, not the property of the crown.  So when the lease that Edward the VI executed during his Regal term was called into question during the reign of Elizabeth I, the Crown lawyers all agreed upon the following:

that by the common law, no act which the King does as King, shall be defeated by his Nonage. For the King has in him two bodies, viz a Body natural and a Body Politic. His Body natural (if it be considered in itself) is a body mortal, subject to all Infirmities that come by nature or Accident to the Imbecility of Infancy or old Age, and to the like Defects that happen to the natural Bodies of other people.  But his Body Politic is a body that cannot be seen or handled, consisting of Policy and Government, and constitutes for the Direction of the People and the Management of the public weal. And this body is utterly void of infancy, and old age, and other natural Defects and imbecilities, which the Body Natural is subject to, and for this Cause what the King does in his Body Politic cannot be invalidated or frustrated by any disability in his natural body.

This notion of the King’s two bodies is not merely an aberration of the law — rather it was a well known complication of living with a king.  As a matter of fact, the notion of the king’s two bodies figures quite prominently in Shakespeare’s Richard II and are referenced in others. For example in Henry V, King Henry V says:

Twin-born with greatness subject to the breath, Of every fool, whose sense no more can feel But his own wringing.  What infinite heart’s ease Must kings neglect that private men enjoy! What kind of god are thou, that suffer’st  more of Mortal griefs than do they worshippers?

In Richard II, the King’s dilemma is the mortality of the body against the feuding and disquiet of his subjects.   And after seeing a long procession of “tortured kings” Richard proclaims:

For God’s sake let us sit upon the ground, And tell sad stories of the death of Kings – How some have been deposed, some slain in war, Some haunted by ghosts they have deposed, some poisoned by their wives, some sleeping killed; All murdered! for within the hollow crown that rounds the mortal temples of a king, Keeps death his Court, and there the antic sits scoffing his state and grinning at his pomp, Allowing him a breath, a little scene, to monarchize, be feared, and kill with looks, Infusing him with self and vain conceit, As if the flesh which walls our life, Were brass impregnable; and humored thus, Comes at last , and with a little pin Bores through his castle wall, and farewell King!

As noted before, this fictionalized view of the King (the persona gemini) had far reaching impacts, including the law of adverse possession.  The next post will consider the King’s two bodies impact on Adverse Possession more directly.

Update:  Read part II: Nullem Tempus Currit Contra Regem and the King’s Two Bodies: Time and Temporal Reflections Here