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.