Category Archives: Property

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

by • Property, Uncategorized • Tags: , , , ,

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 Law and Sacred Spaces Part I: America in the Face of European Time Reply

by • Creation Narratives, Property, Susan Fenimore Cooper • Tags:

I have been working on some scholarship for the past two years on Property Law’s interactions when law does not apply — a very social science view of law’s reach.  But part of the quest for how the law reaches into areas in which it does not apply requires us to understand how law accomplishes certain things.   For example, how is it that law purports to define purposes for space — whether those purposes are sacred purposes, economic purposes or what have you.   Over the next few posts, I want to look at the National Parks and how American law was defined by the purposes underlying the parks creation.   Particularly, I will pay heed to the writings of Susan Fenimore Cooper and her views of the National Parks as necessary to a broader American identity.

One way that we define purposes for space is through a process of political consensus.   The political process in creating the national monuments established by legislative action the cultural significance of certain natural areas – significance that did not have the benefit of time honored reverence by the culture itself. Such protection of organic spaces begins in the period that Alfred Runtes calls monumentalism, a period in which deep seated insecurity about the lack of national monuments, such as found in longer standing European countries pervaded the American psyche.   Attempting to establish itself as a peer with the older European nations, Americans could not look to man-made things of antiquity to claim cultural bona fides.  Instead, Americans would look to something not-man-made to fills its psyche and sights to strike awe as a country worthy of inclusion with the older historical, and castle laden countries of old Europe.   For the young country seeking to validate its existence to the world, it could not look about to find ancient structures that have stood for hundreds of years.  Existing American architecture was new, compared to cathedrals, castles and columned statehouses of France, England and Spain.  And the structures that America did have seemed temporary.  Instead, Americans looked to the natural wonders around it, particularly those west of the Rocky Mountains – land though virtually worthless for its economic use, could be quite bountiful as a place to strike an identity for the still young country.

Susan Fenimore Cooper described the tension between comparing the present and the struggle for American identity.  She begins her commentary by describing the effect of man over time in a land:

“The monuments of the succeeding age, raised by a more skillful people are much more prominent.  Indeed it would seem as if man had no sooner mastered the art of architecture, than he aimed at rivaling the dignity and durability of the works of nature, which served as his models.”

Of course as Cooper would go on to say, America, though holding an abundance of the later, lacked the former edifices that testify to man’s ingenuity and wisdom.  But it was not just the aesthetics of the ancient buildings that forced Americans like Cooper to look around and wonder about their own landscapes in comparison to their European counterparts, it was their age that defined the structures as emblematic of a thoughtful culture:

The durability of their architecture still remains to the present day one of the most remarkable characteristics of those ancient ages.  Such is the wonder excited in the minds of the most skillful architects of the present day at the sight of the immense masses of stone transported and uplifted , apparently at will, by those ancient nations that some have supposed them to have possessed mechanical power of their own, lost to succeeding ages and not yet regained by ourselves.  Certainly if would appear a well-assured fact, that the oldest works of the first great architects have been the most enduring and the most imposing of all that human art has raised.

And, from many Americans view point, these great creations have passed to all nations but America.  Cooper notes that Egypt has the great pyramids and India has her ancient temples.  The Roman and Grecian civilizations produced “architectural labors which for excellence and beauty” American struggles to find a comparison. And the civilizations of Europe, thanks to the Gothic architecture of the middle ages, are endowed with Cathedrals, castles and bridges, “which with a few exceptions here and there, [shall] outlast modern works of the same nature.”

Indeed, looking across the American landscape, persons such as Cooper were certainly remiss to find edifices that lasted the test of time.  But the test of time, was not merely showing the technological capacity of individuals to create lasting structures, but inspired the modern ages architecture to do likewise in these places.  America suffered with few architectural examples to follow and therefore know which ones to keep:

How different from all this is the aspect of our own country!…. The fresh civilization of America is wholly different in aspect from that of the old world: there is no blending of the old and the new in this country; there is nothing old among us.  If we were endowed with ruins we should not preserve them; they would be pulled down to make way for some novelty.  A striking instance of this tendency will be found in the fact that the last Dutch house in New York has disappeared.  For a long time a number of those historical way marks existed in the older parts of the town, but now, we understand that the last high gable, the last dutch walls, have disappeared from New Amsterdam.

Indeed, without a past that reveals itself in the sights of the American landscape, the American experiment might be deemed to be like its architecture – slight and fugitive.  America needed something different to claim as establishing its antiquity.

Next Post — Natural Monumentalism

 

Good Commercial Faith and the City: What Adam Smith really would say… Reply

by • Adam Smith, Book Reviews, Commerce, Property, Ralph Waldo Emerson

In teaching a Property Seminar,I have asked students to write response essays to books that have property themes.  One student, Jim Dickinson (employers out there, hire this guy now), decided to take on Milton Friedmon’s Capitalism and Freedom.  In doing so, I suggested he read Deirdre McCloskey’s Bourgeous Virtues: Ethics in an Age of Commerce.  James wrote back this past weekend and said: “I began reading it this morning, and it is very helpful.  The author is brilliant and hits on points that Friedman leaves out.  McCloskey brings to light the other side of the capitalism, the side of exercising personal virtue, that Friedman omits.”

So I decided to dig through the archives and find a post I wrote about three years ago for Commercial Law blog.   Enjoy!

This post appeared on Commercial Law Prof Blog March 18, 2009

I want to talk about commercial virtues. One of the troubling aspects of commercial dealings today is the focus on ethics. Truthfully, I despise the topic (perhaps because I was never very good at the subject in either theological classes or law classes — like professional responsibility for one). But the real reason I despise ethics, my own discordant academic performance in the subject aside, is I think we are often times asking the wrong questions. We assume that by ethics, we mean some form of social responsibility, but more often than not, that responsibility is defined by communities of interest, rather than greater social values. Consider the problem with UCC 1-201 and the definition of good faith. Do we really mean good faith is “honesty in fact” when we combine that with the observation of “reasonable commercial standards of fair dealing”. Which takes precedence — clearly the latter. The secured lender that tells only part of the story to his debtor (your income statement is a mere formality) has not been completely operating with “honesty in fact” though his actions may well fit within the constraint of reasonable commercial standards of fair dealing — after all, fudging your income was hardly the act of just a few bad apples. The subjective element of good faith gives way to the relevant community that defines what good faith means.

Deirdre McCloskey in her defense of capitalism, aptly named, the Bourgeois Virtues, makes many debatable claims that Capitalism makes the world better (many of which I will not attempt to defend). But what McCloskey does get is that commerce (and commercial law) urges the continued development of social structures for the betterment of the individual within a community that is itself working to be better. Her perspective is that capitalists, like Adam Smith understood that capitalism was constrained by a quite powerful force — the internal virtue of the individual.  Quoting Rabbi Starks, McCloskey writes:

It is the market — the least overtly spiritual of contexts — that delivers a profoundly spiritual message… The free market is the best means we have yet discovered… for creating a human environment of independence, dignity and creativity.

McCloskey’s message of capitalism as a movement of social ingenuity is at its core the spiritual message of hope we find in some of our best religious literature. The prophet Jeremiah admonished the Israelites in Captivity:

This is what the Lord Almighty, the God of Israel says to all those I carried into exile from Jerusalem to Babylon: ‘Build houses, settle down; plant gardens, eat what they produce, Marry and have sons and daughters; find wives for your sons and give your daughters in marriage so that they too may have sons and daughters. Increase in number there do not decrease. Seek the peace and the prosperity of the city to which I have carried you into exile. Pray to the Lord for it, for if it prospers, you too will prosper

Ralph Waldo Emerson also saw that hope comes from capitalist engagement but only when the mind is able to reflect upon its work. Emerson distinguishes between the Brute Economy, in which labor and strength build vast empires of material longing only (i.e. its good to spend money to relieve us of the pain of 911), with the capitalist economy which employs intellect in an analytical expansion of labor, material and wealth. What Emerson says the Capitalist lacks is the moral and spiritual wisdom of the poet – “who acts upon nature with his entire force — with reason as well as understanding.”

The virtue of McCloskey’s work is that Commerce (and capitalism) share a common goal of enhancing our social order, instilling the hope that we might reshape “the city” into an image that is not of ourselves as we currently stand, but of the selves that we might one day hope to be, both individually and collectively. And that actions should be weighed and measured against both of these standards. Whether we segregate capitalists from capitalist poets, we nonetheless, come to the same conclusion as Emerson and McCloskey — that commerce creates the potential for humans to be good.

Which brings me back to 1-201. Do we really want good faith to be watered down by community constraints or is there a moment for reflection of the aspirational norms that commercial dealings might adhere to? I was much happier when good faith was simply “honesty in fact” without the burden of community differences, whatever that might mean — even if the aspirational view of good faith was nearly impossible to enforce.

To buy a copy of the Bourgeous Virtues, click the link:

http://rcm.amazon.com/e/cm?t=thelittab-20&o=1&p=8&l=as1&asins=0226556638&ref=tf_til&fc1=000000&IS2=1&lt1=_top&m=amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr

Langston Hughes: The Ballad of the Landlord 1

by • Book Reviews, Critical Race Theory, Property

One of the sad epithets of Property is the way claims to entitlements are used to shape human relations — particularly racial human relations.   Langston Hughes wrote about the unfair inequality between black tenants and white landlords in his poem, The Ballad of the Landlord published in 1940.  He tips us off as to who is ultimately victorious in societies eyes with his poem – the lazy landlord who collects rent without taking care of his property.  There has been a traditional thought that racial minorities negatively impact property values. This traditional belief was captured in the law’s reluctance to force property owners to financially improve the living conditions that minority groups lived in.  The ballad suggests that the landlord is victimized when the tenant takes out his aggression on him in the end.  Ironically, the landlord is victor in all things — the courts, the avoidance of basic human responsibility, etc…., while merely suffering a slight bruise at the hands of the person he has inflicted arguably more harm to.    Moreover, notice the response of the landlord when assailed — the assault by the tenant is not merely a response to protect his property; its a challenge to the basic security of the nation.  How little times have changed.

It was not until the 1960’s that the courts began slowly recognizing a remedy in the form of a warranty of habitability. One of the earliest expressions was from the Wisconsin Supreme court in a case titled Pines v. Perssion, 111 N.W. 409 (1961).  The case involved four University of Wisconsin students who leased a house that they later discovered had electrical, plumbing, and heating defects.  They later vacated the premises and brought suit to recover money already paid.  In the case, the court said:

To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.  The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliche, caveat emptor. Permitting landlords to rent “tumble-down” houses is at least a contributing cause of such problem as urban blight, juvenile delinquency, and high property taxes for conscientious land owners.”

We know that the housing market (particularly the leasing market) tends to impact racial minorities with issues of adequate housing more than white people.  Part of the impact is certainly due to household economics.  For example Brophy et al, point out the disproportionate  number of minority households affected by lead poisoning in a note of their case book Integrating Spaces.  We’ve blogged about Integrating Spaces before here.  Brophy writes about disproportionate treatment of minorities in led poisoning cases:

According to a survey conducted from 1999-2002, “non-Hispanic blacks and Mexican Americans had higher percentages of elevated blood lead levels (1.4% and 1.5% respectively) than non-Hispanic whites (0.5%).  Among subpopulations, non-Hispanic blacks aged 1-5 years  and aged [greater than] 60 years had the highest prevalence of elevated blood lead levels (3.1% and 3.4% respectively).

These facts only make Langston Hughes’ poem The Ballad of the Landlord all the more relevant.

Landlord, landlord,
My roof has sprung a leak.
Don’t you ‘member I told you about it
Way last week?Landlord, landlord,
These steps is broken down.
When you come up yourself
It’s a wonder you don’t fall down.Ten Bucks you say I owe you?
Ten Bucks you say is due?
Well, that’s Ten Bucks more’n I’l pay you
Till you fix this house up new.What? You gonna get eviction orders?
You gonna cut off my heat?
You gonna take my furniture and
Throw it in the street?Um-huh! You talking high and mighty.
Talk on-till you get through.
You ain’t gonna be able to say a word
If I land my fist on you.Police! Police!
Come and get this man!
He’s trying to ruin the government
And overturn the land!

Copper’s whistle!
Patrol bell!
Arrest.
Precinct Station.
Iron cell.
Headlines in press:
MAN THREATENS LANDLORD
TENANT HELD NO BAIL
JUDGE GIVES NEGRO 90 DAYS IN COUNTY JAIL!

Epilogue

This poem made the news when a Virginia teacher requested an African American student read the poem “blacker.”  Kudos to the young man for refusing!

Race Nuisance and American Jazz 1

by • Critical Race Theory, F. Scott Fitzgerald, Nuisance, Property • Tags: , ,

Today in Property we discussed how nuisance is shaped by racial attitudes of the day.  We are using Al Brophy, Alberto Lopez and Kali Murray’s Integrating Spaces: Property Law and Race case book as a supplement to Dukeminier.  One of the cases we covered today was Truehart v. Parker, 257 S.W. 640 (Tex. Civ. App. 1923).  The case involved an Jazz Hall in San Antonio, Texas and a white property owner adjacent to the operation.   As Amy Leigh Wilson suggests in her article A Unifying Theme or a Path to Degregation: The Jazz Influence in American Property Law, 55 Alabama L. Rev. 425 (2004), jazz was commonly feared.  As one writer said, Jazz was – among other things – a century-long political conversation between Black Americans and White Americans. It was a musical, intellectual and spiritual conversation within a highly politicized social context whose axes were language, race and power.  Thus, the court’s describes of the sounds emanating from the Jazz Hall is this fashion:

No self-respecting citizen with a home in which lives his wife and children could fail to be disturbed by the proximity of a place of assemblage at night of men and women, who to the accompaniment of screeching pianos, high keyed violins, and blaring saxophones, emitting the strains of barbaric jazz, more discordant than tom-tom or Chinese gong, transform rest and slumber into a nightmare, and render hideous the hours set apart by nature for their enjoyment.

This passage draws on a larger point made by Lawrence Levine in his article Jazz and American Culture, published in The Journal of American Folklore (Vol. 102, No. 403 1989).  There he argues that the words Jazz and Culture became at the turn of the twentieth century negative referents for each other:

One could understand what culture was by looking at the characteristics of jazz, and reversing them.  Jazz was, or at least seemed to be, the new product of a new age; Culture was, or at least seemed to be, traditional — the creation of centuries.  Jazz was raucous, discordant; Culture was harmonious, embodying order and reason.  Jazz was accessible, spontaneous; Culture was exclusive, complex available only through hard study and training.

Jazz was openly an interactive, participatory music in which the audience played an important role, to the extent that the line between audience and performers was often obscured.  Culture built those lines painstakingly, establishing boundaries that relegated the audience to a primarily passive role, listening to, or looking at the creations of true artists.  Culture increased the gap between the creator and the audience; jazz narrowed that gap.  Jazz was frequently played in the midst of noisy, hand-clapping, foot-stomping, dancing and gyrating audiences.  Those who came to witness culture in art museums, symphonic halls, opera houses, learned what Richard Sennett has called “silence in the face of art.”

Jazz obtained a particular association as dissident music.  From Wilson’s comment:

 In 1931, F. Scott Fitzgerald dubbed the twenties “the Jazz Age,” a title that succinctly expresses the post-war revolt which typified the decade. This revolt occurred primarily in the homes of middle-and upper-class white Americans, where jazz was drawn on to cope with evolving lifestyles.  More specifically, white youths used this music to champion social rebellion and critique stringent adult standards.  While this movement eventually changed Americans’ identity and values, it did not go unchallenged. The prohibition of liquor sales in 1920 signaled that reactionary opponents would counter the “jazz movement” throughout the decade. Fearful of the emerging behavior of emboldened youths, Americans “condemned jazz as a symbol of the violation of tradition and morality.”

Jazz’s appeal to the white youth of the 1920s coupled with its aggressively irreverent and suggestive sounds made it a topic of controversy. Jazz music “was condemned by conservatives as the downfall of America’s white youth.” Newspapers, magazines, and outspoken leaders of the day made quite a case for the corruptive effects of jazz: A minister declared that “in 1921-22 jazz had caused the downfall of 1,000 girls in Chicago alone.” Henry Ford attacked “the waves upon waves of musical slush that invaded decent parlors and set the young people of this generation imitating the drivel of morons.” John McMahon, writing in the Ladies Home Journal, condemned “The Jazz Path to Degradation,” asked “Is Dance Ruining Our Youth?” and yearned for a return “Back to Pre-War Morals.”
Today, Jazz has reached a cultural affinity, being described by one writer as like simultaneously hearing all the footsteps on the sidewalk of a city – feet shuffle, run, stroll, trip, and strut.  Its unordered and unruly.  And for people accustomed to order and ruliness, its, perhaps, a nuisance.
So what are we to make of cases like Truehart and the role of nuisance.  In the Truehart case, it is difficult to perceive the court in anyway other than Jazz-hostile.   Here the court evaluates claims by the plaintiffs and the evidence posed by the defense:
The dance was known as the Silver Leaf Club. No one swore that the music and voices in the hall could not be heard in the home of appellant.  Several witnesses swore that they could be heard., and there was ample testimony to show that the street in front f appellant’s house was nightly almost blocked by automobiles  and that their honking and other noises were very disagreeable and disturbing. All of the witnesses for the [dance club] were either patrons of the dance hall, or women there to control the female dancers and others interested in the affairs of the dance hall.  They were not disturbed of course.  They went there to dance, to hear the roar of the drums, and the music of the fiddle and the saxophone.   It was either their business or their pleasure to be there and they were not disturbed.  The people who lived in their homes in the immediate vicinity , however, swore, and no one contradicted them, that until the din and noise had died out because the dancers had dispersed, sleep was driven away and the night robbed of its rest and comfort.  To those that business or pleasure had lured to the dance, it was a terpsichorean dream of pleasure, while to the unfortunate denizens of the homes nearby, it was a terrible nightmare, and while the dancers chased the fleeting hours with flying feet to the sensuous strains of dance hall music, the residents tossed upon sleepless beds.
Notice that the court unquestionably accepts the testimony offered on behalf of the homeowners, while suggesting that the testimony on behalf of the club is somehow less than reliable.   There is no perception that the homeowner’s have any stake at all in this matter, other than the stakes that we would all find acceptable — preserving the night for the natural confines of rest. Moreover, the opinion seems to highlight cultural elitism — referring to Jazz and dancing as a “terpsichorean dream of pleasure” seems to suggest a nefarious role for Jazz and dance hall adherents.   It also speaks to the political presumptions made about Jazz regardless of who was there — white or black.   The progressive leanings of Jazz adherents bucked directly against and were counter-cultural to the primary activity of the culture — quiet, rest and sleep.  Part of the fear of Jazz stemmed from the fear of the unknown — which was highly symbolic given the way Jazz is played.  “Jazz,” observed Louis Armstrong, “is music that’s never played the same way once….”

So perhaps, nuisance, like culture is merely a referent for the things we accept or don’t accept.   One student this morning described nuisance as “anything I don’t approve of, as long as enough people agree with me.”  That does not seem to be too far off.

Image curtesy of MassCommons.

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

by • Property, Uncategorized • Tags: , , , , ,

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

by • Property, Uncategorized • Tags: , , , , , , ,

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

by • Property • Tags: , , ,

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

by • Property • Tags: , , , , , ,

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

by • Property, Shakespeare • Tags: , , , , ,

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