Tag Archives: Nathaniel Hawthorne

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.  

Melville to Hawthorne: “Well, the Hawthorne is a sweet flower; may it flourish in every hedge.” 1

by • Herman Melville • Tags: , ,

Yale University Libraries is posting letters between various authors, including a letter between Melville and Hawthorne.  This is an interesting project.  I am not sure if its the quaint interlude, but I find the reading of these letters interesting.  I will try to post them periodically.

Hawthorne and Melville met in 1850, and maintained a correspondence until 1852.  From the life and writings of Herman Melville posted at Melville.org:

The two authors met for the first time in Stockbridge on August 5, 1850, on a picnic excursion hosted by David Dudley Field. Hawthorne was forty-six and was familiar with at least a portion of Melville’s work, having favorably reviewed Typee in the Salem Advertiser (March 25, 1846); Melville was thirty-one and had just written or was about to write an exceedingly warm and enthusiastic piece on Hawthorne’s Mosses From an Old Manse, a copy of which had been given to him by an aunt a few weeks before.

Early in the course of the excursion, a sudden thunderstorm forced the party to take shelter, giving Melville and Hawthorne an opportunity to become better acquainted. The two men took to each other at once, and as their conversation continued were delighted to discover a growing bond of mutual sympathy and comprehension. Two days later Hawthorne wrote to a friend “I liked Melville so much that I have asked him to spend a few days with me.” This would be the first of a series of visits, supplemented by written correspondence, that would continue until the gradual cooling off of the friendship late in 1852.

On their last meeting, Hawthorne records:

“Herman Melville came to see me at the Consulate, looking much as he used to do (a little paler, and perhaps a little sadder), in a rough outside coat, and with his characteristic gravity and reserve of manner…. [W]e soon found ourselves on pretty much our former terms of sociability and confidence. Melville has not been well, of late; … and no doubt has suffered from too constant literary occupation, pursued without much success, latterly; and his writings, for a long while past, have indicated a morbid state of mind…. Melville, as he always does, began to reason of Providence and futurity, and of everything that lies beyond human ken, and informed me that he had “pretty much made up his mind to be annihilated”; but still he does not seem to rest in that anticipation; and, I think, will never rest until he gets hold of a definite belief. It is strange how he persists — and has persisted ever since I knew him, and probably long before — in wondering to-and-fro over these deserts, as dismal and monotonous as the sand hills amid which we were sitting. He can neither believe, nor be comfortable in his unbelief; and he is too honest and courageous not to try to do one or the other. If he were a religious man, he would be one of the most truly religious and reverential; he has a very high and noble nature, and better worth immortality than most of us.”

Herman Melville, letter to Nathaniel Hawthorne, July 17 [1852?].
From the Nathaniel Hawthorne Collection.

My Dear Hawthorne:—This name of “Hawthorne” seems to be ubiquitous. I have been on
something of a tour lately, and it has saluted me vocally & typographically in all sorts of places
& in all sorts of ways. I was at the solitary Crusoeish island of Naushon (one of the Elisabeth
group) and there, on a stately piazza, I saw it gilded on the back of a very new book, and in the
hands of a clergyman.—I went to visit a gentleman in Brooklyne, and as we were sitting at our
wine, in came the lady of the house, holding a beaming volume in her hand, from the city—“My
Dear,” to her husband, “I have brought you Hawthorne’s new book.” I entered the cars at Boston
for this place. In came a lively boy “Hawthorne’s new book!”—In good time I arrived home.
Said my ladywife “there is Mr Hawthorne’s new book, come by mail” And this morning, lo! on
my table a little note, subscribed Hawthorne again.—Well, the Hawthorne is a sweet flower;
may it flourish in every hedge.
I am sorry, but I can not at present come to see you at Concord as you propose.—I am but just
returned from a two weeks’ absence; and for the last three months & more I have been an utter
idler and a savage—out of doors all the time. So, the hour has come for me to sit down again.
Do send me a specimen of your sand-hill, and a sunbeam from the countenance of Mrs.
Hawthorne, and a vine from the curly arbor of Master Julian.
As I am only just home, I have not yet got far into the book but enough to see that you have most
admirably employed materials which are richer than I had fancied them. Especially at this day,
the volume is welcome, as an antidote to the mooniness of some dreamers—who are merely
dreamers—Yet who the deviant a dreamer?
H Melville
My remembrances to Miss Una & Master Julian—& the “compliments” & perfumes of the
season to the “Rose-bud.”

Returning from the Oklahoma Sovereignty Symposium 5

by • Roger Malvin's Burial • Tags: , , , , , , , ,


I have been traveling allot the last few weeks.  One of the places that I have been, and which I am returning is the Oklahoma Sovereignty Symposium in Oklahoma City, OK.  This is my first year going and it was well worth the drive.  I was blown away by the Parade of Nations, in which the tribal nations of Oklahoma entered the arena.  I was captivated by the conversations and found myself wishing I had more to contribute.  But on a certain level that seems to be appropriate when we are talking about Native Americans and the law doesn’t it. Our narrative history (I am Choctaw) chants a song that is only heard by some, but when heard is a testament to our life, our struggles and our status as a people.

This years theme was “as long as the grass grows.”  How fitting a phrase for Indian law itself.  As long as the grass grows beneath our feet, Indian law will continue to whisper the remnants of our past.

While I was sitting in the panels and listening to the rich dialogues that of themselves gave birth to the peoples and their stories, I began to think about what types of texts might fit in a law and literature course.

Of course Nathaniel Hawthorne wrote about Indians: we have talked about Roger Malvin’s Burial and Lovewell’s fight in the French and Indian War here; however, Indians in Hawthorne’s tales are mostly in the background — setting for the action of the european settlers. This is in contrast to his contemporary James Fenimore Cooper who romanticized the American Indian (Last of the Mohicans remains a favorite (book and movie).

Another book that looks at the Indian as confronted with modernity, is Sundown, by John Joseph.

A modern piece of literature that struggles with identity, family, and modernity is The Bean Trees by Barbrara Kingsolver.   I keep meaning to read her follow up to that book Pigs in Heaven, though perhaps this summer. Animal Dreams is also a good read.

Perhaps though the best book is Robert William’s The American Indian in Western Legal Thought. William’s historical and cultural sensativity make this volume a must for anyone contemplating Indian Law.

What other works by or about Native Americans should be included in a Law and Literature Course?

Video and Song: Ghost Dance by Robbie Robertson

Nathaniel Hawthorne’s Roger Malvin’s Burial and the Question of Conduct 2

by • Roger Malvin's Burial • Tags: , , , , , , , , ,

Nathaniel Hawthorne’s short story Roger Malvin’s Burial (1832) is set following Lovewell’s fight in the French and Indian Wars. Besides Roger Malvin’s Burial, Lovewell’s fight has been mentioned in a ballad of Lovewell’s fight, which was written anonymously after the 1725 fight as well as the painting Chamberlain and Paugus at Lovewell’s Fight, 1725.

wpid-1149648.jpg

Roger Malvin’s Burial is a story about conduct and the guilt that flows from one’s conduct. It follows two soldiers returning from Lovewell’s fight, both wounded. At a certain point, one soldier, Roger Malvin, decides that he cannot go further. He pleads with his companion Reuben Bourne to leave him and return to the settlement. After telling Roger Malvin that he would not leave him, Reuben finally agrees. Before leaving on his own, Roger asks Reuben to promise one thing — return to bury him.

When Reuben Bourne makes it back to the settlement, his wounds have overcome him, leaving him unconscious for several days. When he does recover, Reuben is treated as a brave man and Reuben is not given to tell Roger’s daughter Dorcas that he left Roger to die in the woods alone. Reuben ultimately marries Dorcas and accedes to Roger Malvin’s farm. They also have a child named Cyrus. And Reuben never returns to bury Roger Malvin. Over the next several years things fell apart for Reuben. The farm fails, his community begins to question his integrity, and eventually Reuben, Dorcas, and Cyrus leave the community.

Cyrus is, by all accounts the embodiment of Cyrus of Persia, both in his ethic and his treatment of others. Recall that Cyrus of Persia in the Biblical text is responsible for rebuilding the Jewish Temple in Jerusalem (Book of Ezra and Nehemiah). He is hailed by the Prophet Isaiah as “the Lord’s anointed,” despite the fact that he himself is not an Israelite. (Isaiah 45:1-8) Reuben on the other hand in the biblical account is filled with complexity and contradiction. He is intimate with his mother Rachel’s handmaid (like his father before him), leading early biblical scholars to suggest that Reuben engaged in incest (Genesis 35:22). Reuben is also the model of indecision, who at first saves Joseph’s life, but then merely comes up an alternative to death by throwing Joseph into a well and selling Joseph into slavery. (Genesis 37:21 et seq.). Later, when famine strikes Israel, its Reuben that recognizes the connection between the action of the brother’s and the state of the land (Genesis 42:22). In short, like the Biblical Reuben, Hawthorne’s Reuben was a deeply conflicted character who recognized his faults without being entirely clear about how to resolve them.

As Reuben and Cyrus are hunting for food, in the same woods where Roger Malvin died (Hawthorne loves irony), Reuben shoots his musket at a deer. He then discovers that he has actually shot and killed Cyrus, on the very spot where Roger Malvin was left unburied to die (Hawthorne really loves irony)! Several questions arise in reading Roger Malvin’s Burial in the context of the law — principally, should Reuben have left Roger Malvin? Whatever our answer, as the story goes forward we get a picture that Reuben would not be held out of esteem by the community even by leaving Roger Malvin. Nevertheless, Reuben can’t bring himself to tell the truth about leaving Roger Malvin alone to die.

When I have taught torts, I always end the class with this story — largely because this story encapsulates the tension between rights and wrongs as decided by communities versus rights and wrongs as individualized. Torts as a legal matter only enforces those wrongs which we jointly recognize as being remedied by force of law. Yet, its the individual wrong that causes the most lasting consequences — often the inverse of our social legal recognitions. In Roger Malvin’s Burial, the consequence is guilt — and the expiation of that guilt is itself something that one normally feels guilt over — the killing of one’s own son.

There is much more to Roger Malvin’s Burial, including the confusion of Indian and Puritan symbols between Roger Malvin and Rueben Bourne, and Hawthorne as historian presenting his own unique view of New England.