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The End of Entail: Information, Institutions, and Slavery in the American Revolutionary Period

Published online by Cambridge University Press:  05 May 2015

Claire Priest
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For historians and property law scholars, the abolition of the fee tail estate in land by many states during the American Revolutionary Period serves as a principal symbol of the power of republican ideology during the Founding Era. Political leaders of the Founding Era deplored the system of hereditary privilege that defined the European aristocratic political order. Property served as the foundation of that order: political, economic, and social privileges were associated with ownership of landed estates. Property and inheritance law enabled families to retain land, and, therefore, the privileges associated with landed estates, over the generations. Therefore, American historians celebrate the abolition of the fee tail estate and primogeniture by some states as a practical and tangible achievement of the Republican Revolution.

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Articles
Information
Law and History Review , Volume 33 , Issue 2 , May 2015 , pp. 277 - 319
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Copyright © the American Society for Legal History, Inc. 2015 

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References

1. As A.W. Brian Simpson has noted, in England through the late eighteenth century, land was acquired more frequently to gain “locally based political and social power” than for reasons of geographic mobility or for economic production. Brian Simpson, A.W., “Land Ownership and Economic Freedom,” in The State and Freedom of Contract, ed. Scheiber, Harry N. (Stanford: Stanford University Press, 1998), 13–33Google Scholar. The House of Lords was constituted by the peers of the realm, a group of approximately 200 landowners of large estates, who held hereditary titles of nobility that passed by inheritance. See Wood, Gordon S., The Radicalism of the American Revolution (New York: Vintage Books, 1993), 25Google Scholar. In 1881, a study of English land ownership relying on The New Domesday Book of 1871, estimated that “a landed aristocracy consisting of about 2,250 persons own together nearly half the enclosed land in England and Wales.” Brodrick, George C., English Land and English Landlords (London: Cassell, Petter, Galpin & Co., 1881), 165Google Scholar.

2. Blackstone's Commentaries, for example, describes “the principal object of the laws of real property in England” as the law of inheritance. Blackstone, William, Commentaries on the Laws of England (1765–69) (Chicago: University of Chicago Press, facsimile ed., 1979)Google Scholar, 2: 201. For a more detailed analysis of the ways in which English law privileged landed inheritance, see Priest, Claire, “Creating an American Property Law: Alienability and Its Limits in American History,” Harvard Law Review 120 (2006): 398–408Google Scholar.

3. To indicate a fee tail, the testator would convey to X and “the heirs of his body.”

4. In contrast to owners of a life estate, however, landowners in tail could not be sued in a waste action for reducing the value of the property. Primogeniture, in contrast, was an intestacy doctrine that passed all of the deceased's land to the eldest male heir. It allowed landed estates to be kept intact in the absence of a will to the contrary, but only to the benefit of the eldest son.

5. See Journal of the House of Delegates of Virginia (October 7–December 21, 1776),(Williamsburg: Alexander Purdie, 1776), 13, 24 (reporting Jefferson's introduction of the bill to abolish the fee tail). For the text of the 1776 bill, see Boyd, Julian P., ed., The Papers of Thomas Jefferson, (Princeton: Princeton University Press, 1950), 1:560–61Google Scholar. For the 1776 Act, see “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple” (1776), in The Statutes at Large; Being a Collection of All the Laws of Virginia, ed. Hening, William Waller (Richmond: J & G Cochran, 1821)Google Scholar, 9:226 [hereinafter Hening, Statutes at Large]. It was discovered that the statute could be avoided by placing a remainder in tail after a fee tail, because the act stated that it applied to remainders after life estates or “any lesser estate,” (and fee tails were greater on the hierarchy of estates than life estates). The 1785 act stated that “Every estate in lands or slaves, which on [October 7, 1776] was an estate in fee tail, shall be deemed … an estate in fee simple.” “An act for regulating conveyances,” Hening, Statutes at Large, 12:156–57.

6. Jefferson, Thomas, “Autobiography,” in The Writings of Thomas Jefferson, ed. Ford, Paul Leicester (New York: G.P. Putnam's Sons, 1892–99), 1:49, 68Google Scholar.

7. The principal works on the significance of the reform of property and inheritance law in Founding Era political ideology are Alexander, Gregory S., Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (Chicago: University of Chicago Press, 1997), 37–42CrossRefGoogle Scholar (examining abolition of the entail on both antiaristocratic and functional grounds); McCoy, Drew R., The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill: University of North Carolina Press, 1980)Google Scholar; Wood, Radicalism, 182–84; Brewer, Holly, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” William & Mary Quarterly 54 (1997): 307–46CrossRefGoogle Scholar; Bushman, Richard L., “‘This New Man’: Dependence and Independence, 1776,” in Uprooted Americans: Essays to Honor Oscar Handlin, eds. Bushman, Richard L., Neil Harris, David Rothman, Barbara Miller Solomon, Stephan Thernstrom. (Boston: Little Brown & Co., 1979), 77–96Google Scholar; Hart, John F., “‘A Less Proportion of Idle Proprietors’: Madison, Property Rights, and the Abolition of the Fee Tail,” Washington & Lee Law Review 58 (2001:, 167–94Google Scholar; Katz, Stanley N., “Republicanism and the Law of Inheritance in the American Revolutionary Era,” Michigan Law Review 76 (1977), 1–29CrossRefGoogle Scholar, 3 (“In the study of revolution, the law of inheritance may serve as a touchstone measuring the depth of revolutionary transformation in a society.”); Katz, Stanley N., “Thomas Jefferson and the Right to Property in Revolutionary America,” Journal of Law & Economics 19 (1976): 467–88CrossRefGoogle Scholar; and Konig, David Thomas, “Jurisprudence and Social Policy in the New Republic,” in Devising Liberty: Preserving and Creating Freedom in the New American Republic, ed. Konig, David Thomas (Stanford: Stanford University Press, 1995), 178–216Google Scholar, 191–96. Orth, Compare John V., “After the Revolution: ‘Reform’ of the Law of Inheritance,” Law & History Review 10 (1992): 33–44CrossRefGoogle Scholar (emphasizing that the inheritance reforms of the Revolutionary Era could be evaded).

8. Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America, 5 Geo. 2, c. 7 (1732) (Eng.)

9. Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1998), 88Google Scholar. See also Wood, Gordon S., The American Revolution: A History (New York: Modern Library, 2003), 67Google Scholar (describing the Pennsylvania Constitution as “the most radical constitution of all the states”).

10. See, for example, Goodright v. Morningstar, 1 Yeates 313 (1793), holding that entailed lands descend according to common law rules in the state, and distinguishing entail from primogeniture on the grounds that primogeniture was against the “true spirit of the laws and constitution of this commonwealth” because “[w]e have nothing further to do with the pride of family in the character of an elder son.” The entail was abolished in An Act … for the more Just and Safe Transmission and Secure Enjoyment of Real and Personal Estate, No. 387 (1855), in Laws of the General Assembly of the State of Pennsylvania (Harrisburg, PA: A. Boyd Hamilton, 1855)Google Scholar, 368 (“[W]henever hereafter by any gift, conveyance, or devise, an estate in fee tail would be created according to the existing laws of this state, it shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable.”)

11. The most prominent economic historian of slavery, Gavin Wright, has repeatedly emphasized that liquid land markets were a central underpinning of slavery. See Wright, Gavin, The Political Economy of the Cotton South: Households, Markets, and Wealth in the Nineteenth Century (New York: W.W. Norton, 1978)Google Scholar; and Old South, New South: Revolutions in the Southern Economy Since the Civil War (New York: Basic Books, 1986), 17–50Google Scholar (characterizing slave owners as “labor lords” rather than “landlords”).

12. This analysis of the abolition of the entail is consistent with the eighteenth century perception of the South held by residents of regions with fewer slaves. According to the historian David Brion Davis, “As early as the mid-eighteenth century, … slave societies were acquiring the image of social and cultural wastelands blighted by an obsessive pursuit of private profit.” Davis, David Brion, Slavery and Human Progress (New York: Oxford University Press, 1984), 80Google Scholar.

13. The deep connections between slavery and republicanism was the focal point of Morgan's, Edmund S.American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W.W. Norton & Co., 1975)Google Scholar. Morgan's insight has not fully been incorporated into the historiography of the Founding.

14. See Morantz, Alison D., “There's No Place Like Home: Homestead Exemption and Judicial Constructions of Family in Nineteenth-Century America,” Law & History Review 24 (2006): 245–95CrossRefGoogle Scholar; and Goodman, Paul, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance to the Market Revolution, 1840–1880,” The Journal of American History 80 (1993): 470–98CrossRefGoogle Scholar.

15. See, for example, Chused, Richard H., “Married Women's Property Law: 1800–1850,” Georgetown Law Journal 71 (1983): 1359–1425Google Scholar.

16. Ibid.; and Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982), 125–26Google Scholar (“Much of the early support for a married women's statute focused on the economic dislocations of men; considerations of women were often secondary. Just as debtor exemption laws for household items and tools eased the lot of farmers, artisans, and some wage earners and petty traders, so might a statute separating the wife's property from that of the husband have a similar effect.”).

17. ch. 75, Hening, Statutes at Large, 8:452–53.

18. A 1705 Virginia law provided that entails could be removed by legislative act only. “An Act … for Settling the Titles and Bounds of Lands,” Hening, Statutes at Large, 3:320.

19. ch. 17, Hening, Statutes at Large, 8:66.

20. Ibid., 67 (emphasis added).

21. ch. 12, Hening, Statutes at Large, 8:29.

22. On the importance of skilled slaves to iron works, see Dew, Charles B., Bond of Iron: Master and Slave at Buffalo Forge (New York: W.W. Norton & Co., 1994Google Scholar).

23. ch. 24, Hening, Statutes at Large, 8:225.

24. ch. 29, Hening, Statutes at Large, 4:463.

25. ch. 7, Hening, Statutes at Large, 7:514.

26. ch. 42, Hening, Statutes at Large, 8:164.

27. See, for example, ch. 5, Hening, Statutes at Large, 4:29 (“John Custis, and Frances, his wife, to sell a Mill, with certain Lands and Negros, which are entailed on the said Frances by the last will and testament of Daniel Parke, Esq. deceased, for paiment of the debts and legacies of the said Daniel”); ch. 5, Hening, Statutes at Large, 6:444 (Entail should be removed from Anna Armistead's land because otherwise “the slaves given [Anna's son John] by his father should be sold to pay [debts], which if sufficient for that purpose would render the remainder of his lands of little or no benefit to him.”); ch. 43, Hening, Statutes at Large, 8:166–67 (Slaves sold and fee tail lands “for want of slaves to work them are rather a burden,” by selling entailed land “Harry may be enabled to support his family, and make provision for his younger children, and the estate will descend to the heir in a more profitable state.”); ch. 60, Hening, Statutes at Large, 8:292 (entail to be removed “for want of slaves” on entailed land); ch. 6, Hening, Statutes at Large, 8:302 (“having no slaves to cultivate” the entailed land); ch. 71, Hening, Statutes at Large, 8:442 (petitioner “hath but few slaves to cultivate the lands”).

28. “An Act to enable tenants in taille to make leases of their lands” (1765), ch. 51, Hening, Statutes at Large, 8:183.

29. “Mr. Fane to the Council of Trade and Plantations” (October 16, 1730), No. 488, in Calendar of State Papers, Colonial Series, America and West Indies, 1730, ed. Headlam, Cecil (London: His Majesty's Stationery, 1937), 319–20Google Scholar.

30. See Baker, J.H., An Introduction to English Legal History (London: Butterworths LexisNexis, 4th ed., 2002): 282Google Scholar (“[B]y the end of the fifteenth century the common recovery had made the fee tail freely convertible into a fee simple.”) For Blackstone's discussion of how the common recovery became “looked upon as the legal mode of conveyance, by which a tenant in tail may dispose of his lands and tenements,” see Blackstone, Commentaries, 2:117. According to Blackstone, “no court will suffer them to be shaken or reflected on, and even acts of parliament have by a sidewind countenanced and established them.” Ibid.

31. More specifically, the common recovery involved a conveyance of entailed land to an accomplice in fee simple, with a third party paid to provide a false warranty of title. Under the law, the remainderman's only recourse was against the real property of the party who provided the false warranty of title. The people who agreed to perform this function were usually petty officials who owned no real property. The “barred issue” were, therefore, left without meaningful remedies. Baker, Introduction to English Legal History, 282. For a thorough description of the common recovery and other early American conveyancing practices, see Sheppard, William, The Touchstone of Common Assurances (New York: Isaac Riley, 1808), 1:37–50Google Scholar.

32. In England, conveyance lawyers prided themselves on the scrupulousness with which they handled the process because any error might throw the new fee simple title in question. The cost of this scrupulousness, of course, was the price of the lawyers’ time. Common recoveries were the “bread and butter” of English property lawyers. See Anderson, J. Stuart, Lawyers and the Making of English Land Law, 1832–1940 (New York: Oxford University Press, 1992)CrossRefGoogle Scholar. See also Katz, “Republicanism and the Law of Inheritance,” 10 (The English “system of inheritance … could not operate without a large and sophisticated legal class.”)

33. Kent, James, Commentaries on American Law (1830) (Buffalo: William S. Hein & Co., 1984) 4:13–14Google Scholar.

34. Baker, Introduction to English Legal History, 293–95. According Simpson, “[T]he land was managed by a succession of life tenants, the settlement being reconstituted each generation to ensure that no single individual ever acquired an unfettered power to appropriate the family capital for his individual purposes. It is remarkable that in spite of Blackstone's exaltation of private individual property rights, the landowning class in reality had little use for them.” A.W. Brian Simpson, “Introduction to Book II, William Blackstone,” in Blackstone, Commentaries, 2:iii-xv, xi.

35. Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979), 88Google Scholar (“The eighteenth century was the age of the strict settlement, that intricate piece of conveyancing designed to tie up property, provide for widows, younger sons, and daughters, and, above all, maintain the property intact—or preferably augmented—in the family.”); Simpson, “Land Ownership and Economic Freedom,” 19 (“The aim was to pass the complete estate as a unit down the family line, ideally to a succession of males… . Thus the family land was employed as a patrimony for the whole family, in which individuals performed distinct roles.”).

36. In England, marriage settlements were administered by the Court of Chancery. In colonial America, marriage settlements were recognized in the colonies that established chancery courts—New York, Maryland, Virginia, and South Carolina—and in colonies where the common law courts adopted equitable rules, such as Pennsylvania. The current historical scholarship suggests, however, that marriage settlements were rare in colonial America. See Salmon, Marylynn, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986), 88Google Scholar (Marriage settlements granting women separate estates “remained uncommon throughout the eighteenth and early nineteenth centuries.”) See also, for example, Alexander, Commodity and Propriety, 38–39 (“In England, strict settlements were enforced by Courts of Equity, but since most of the colonies had not established separate equity courts, the strict settlement was generally unavailable to American testators in the seventeenth and early eighteenth centuries, leaving the entail to be the only testamentary device for maintaining family control of land.”); and Bailyn, Bernard, “Politics and Social Structure in Virginia,” in Seventeenth-Century America: Essays in Colonial History, ed. Smith, James Morton (Westport, CT: Greenwood Press, 1980), 90–115Google Scholar (“The basic condition of aristocratic governance in England was never present in the American colonies, and not for lack of familiarity with legal forms. The economic necessity that had prompted the widespread adoption of the strict settlement in England was absent in the colonies.”)

37. “An Act for Barring Estates Tail” (January 27, 1750), The Statutes at Large of Pennsylvania (WM Stanley Ray, State Printer, 1898) 5:100 (emphasis added)Google Scholar.

38. Sullivan, James, The History of Land Titles in Massachusetts (Boston: I. Thomas & E. T. Andrews, 1801), 161Google Scholar.

39. “An Act Concerning Estates Tail,” Laws of Maryland (Annapolis: Frederick Green, State Printer, 1783)Google Scholar, pages not numbered.

40. “An Act … to Limit Estates in Tail,” Acts of the Eighth General Assembly of the State of New Jersey (Trenton, NJ: Isaac Collins, State Printer, 1784), 97Google Scholar.

41. Goebel, Julius and Smith, Joseph H., eds. The Law Practice of Alexander Hamilton, (New York: Columbia University Press, 1980) 3:308–09Google Scholar.

42. These policies were likely modeled after the English private acts of Parliament that were available to free land from strict settlements, life estates, and other restraints on alienation for extraordinary reasons. See Clay, Christopher, “Property Settlements, Financial Provision for the Family, and Sale of Land by the Greater Landowners, 1660–1790,” Journal of British Studies 21 (1981): 18–38CrossRefGoogle Scholar. In the colonies, however, the private legislative acts served as a substitute for common recoveries, rather than as a last resort for landowners who needed to sell land encumbered by stronger devices than an entail.

43. See Gawalt, Gerard W., The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760–1840 (Westport, CT: Greenwood Press, 1979), 14Google Scholar, Table 1 (finding that Massachusetts had only 15 practicing lawyers in 1740, 1 per 10,108 people).

44. “Mr. Fane to the Council of Trade and Plantations” (November 12, 1727), in No. 778 Calendar of State Papers, Colonial Series, America and West Indies, 1726–1727, ed. Headlam, Cecil (London: His Majesty's Stationery, 1936), 392Google Scholar. The inadequacies of colonial lawyers and officials in executing common recoveries are also described in “An Act for the Supplying the want of Fines and Recoveries in these Islands” (Nevis, June 21, 1705), Acts of Assembly passed in the Charibbee Leeward Islands, 1690–1730 (London: John Baskett, 1734): 20–22Google Scholar. The origins of Virginia's legislative approval requirement are more obscure. Virginia had a community of lawyers sophisticated enough to be able to perform common recoveries. The statute simply states that “it shall not be lawfull” for individuals to “to suffer any recovery to be had, whereby to cut off or defeat any estate in fee tail [or to use other means to bar an entail] except only by an act of the general assembly of this dominion.” It then states that the use of law office procedures such as the common recovery to bar an entail “are hereby declared to be all intents and purposes, null and void.” “An Act for Settling the Titles and Bounds of Lands…” (1705), Hening, Statutes at Large, 3:320. This statute was reenacted in 1710. See ch. 13, Hening, Statutes at Large, 3:518–19. With regard to North Carolina, the historian John V. Orth speculates that “[t]he common recovery was apparently unknown in North Carolina, whether because colonial courts had not been up to its subtleties or because social conditions in the colony had lagged those along the Chesapeake.” Orth, “After the Revolution,” 41.

45. It is notable that these colonies were all under direct royal rule as opposed to having legal authority vested in the colonial legislatures by means of a charter or patent. Harris, Marshall, Origin of the Land Tenure System in the United States (Ames, Iowa: Iowa State College Press, 1953), 75Google Scholar.

46. “Journal of Assembly of Barbados” (February 20, 1677), in No. 74 Calendar of State Papers, Colonial Series, America and West Indies, 1677–1680, eds. Sainsbury, W. Noel, and Fortescue, J.W. (London: Her Majesty's Stationery, 1896), 24Google Scholar (emphasis added).

47. “An Act to Dock the Entail … and to vest the Fee-Simple thereof in Martha Lenoir” (1717), in Acts of Assembly Passed in the Island of Barbadoes from 1648 to 1718 (London: John Baskett, 1721), 313Google Scholar.

48. Ibid., 314.

49. “An Act to dock the Entail,” (1715), in Acts of Assembly Passed in the Island of Barbadoes, 306.

50. It not unrelated that Barbados lacked a well-developed community of English colonists with a long-term interest in building a residential society on the island, and the economy of Barbados was entirely dominated by slave labor used to produce sugar. See, for example, Menard, Russell R., “Law, credit, the supply of labour, and the organization of sugar production in the colonial Greater Caribbean: a comparison of Brazil and Barbados in the seventeenth century,” in The Early Modern Atlantic Economy, ed. McCusker, John J., and Morgan, Kenneth (New York: Cambridge University Press, 2000), 154–62.Google Scholar

51. See Calendar of State Papers.

52. In my examination of the correspondence between the Board of Trade and the colonies, the only such act that the royal authorities disallowed was that of the Antiguan legislature described in the text accompanying footnote 29.

53. According to Smith, “[Entails] are founded upon the most absurd of all suppositions, the supposition that every successive generation of men have not an equal right to the earth, and to all that it possesses; but that the property of the present generation should be restrained and regulated according to the fancy of those who died perhaps five hundred years ago… . The common law of England … is said to abhor perpetuities, and [entails] are accordingly more restricted there than in any other European monarchy; though even England is not altogether without them. In Scotland, more than one-fifth, perhaps more than one-third part of the whole lands of the country, are at present supposed to be under strict entail.” Smith, Adam, An Inquiry Into the Nature and Causes of The Wealth of Nations (1776), ed. Cannan, Edwin (Chicago: University of Chicago Press, 1976), 1:409–10Google Scholar. Other scholars have analyzed the effects of Virginia's policy, but there has been no historical explanation provided for the adoption of the policy other than as an explicit effort to introduce a landed elite into Virginia. The best description of Virginia's peculiar approach to entails are Brewer, “Entailing Aristocracy,” 326–28 (describing the difficulty of barring entails in Virginia); Hart, “Madison, Property Rights, and the Abolition of Fee Tail,” 172–75; and Orth, “After the Revolution,” 40–44.

54. Ch. 42, Hening Statutes at Large, 8:164.

55. Ch. 13, Hening, Statutes at Large, 8:34. For a list of representative acts, see, for example, Hening, Statutes at Large, 4:377–379. One states: “An Act for vesting certain entailed Lands … in Thomas Turner, in fee simple; and for settling other Lands and Negroes, of greater value, to the same uses.” Ibid., 377.

56. “Report of Joint Committee of Council and House of Burgesses” (1748), in Hening, Statutes at Large, 5:442 fn.

57. Ch. 72, Hening, Statutes at Large, 8:445.

58. Cook, John, Monarchy no Creature of God's Making (Waterford, Ireland: Peter de Pienne, 1651), 26Google Scholar. See also Bonfield, Lloyd, Marriage Settlements, 1601–1740 (Cambridge: Cambridge University Press, 1983), 20CrossRefGoogle Scholar (discussing mid–seventeenth century movement to lower costs of barring entails).

59. Hale, Matthew, A treatise shewing how usefull, safe, reasonable, and beneficial the inrolling & registring of all conveyances of lands may be … (London: Mat. Wotton, 1694), 21Google Scholar.

60. See Bogart, Dan, and Richardson, Gary, “Property Rights and Parliament in Industrializing Britain,” Journal of Law & Economics 54 (2011): 241–74CrossRefGoogle Scholar.

61. “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple” Hening, Statutes at Large, 9:226.

62. An Act for amending the Act intitled … for Settling the Titles and Bounds of Lands, ch. 6, Hening, Statutes at Large, 4:399.

63. Ibid., 400.

64. Ibid., 399–400.

65. The fee tail would be barred “in the same manner as the same estate might be barred, by fine, or recovery, according to the laws of England.” Ibid., 400.

66. “An Act directing the Method for cutting or docking Intails of small Estates (1749),” The State Records of North Carolina, ed. Clark, Walter (Goldsboro, NC: Nash Brothers, 1904 ), 23:315–316Google Scholar.

67. Brown, Robert E., and Brown, B. Katherine, Virginia 1705–1786: Democracy or Aristocracy? (East Lansing, MI: Michigan State University Press, 1964), 88Google Scholar. They conclude that, “In practice, whatever the intent, the ad quod damnum law helped both rich and poor to avoid the restraints of entail.” Ibid., 85.

68. Landon Carter's diary mentions his effort to have the legislature insert a provision into each private act docking the entail on land that prohibited the entail on the new land from being subsequently removed according to the ad quod damnum process. Carter was not successful in getting the legislature to condition removal of the entail on this requirement. Brown and Brown, Virginia 1705–1786, 88. When entails were docked by legislative act, there is evidence that the tenants in tail evaded the requirement of entailing new land by purchasing multiple small parcels and, at a later time, removing the entails on the parcels through the ad quod damnum process.

69. Richard Henry Lee to William Lee (July 7, 1770), in Letters of Richard Henry Lee (1911), 1:50, quoted in Brown and Brown, Virginia 1705–1786, 85 n. 39.

70. Matt. Kemp (June 10, 1737), Virginia Gazette, quoted in Brown and Brown, Virginia 1705–1786, 85 n.38.

71. There are clear advantages to protecting a family homestead from risk. As Gavin Wright has described, “The family farm provided a substantial measure of security—against starvation, unemployment, or old-age destitution. In an era of undeveloped and risky financial institutions, the family farm provided a means of accumulating wealth in a reasonably safe form—the wealth being largely the product of the family's own labor in land clearing, fencing, drainage, etc.—and self-cultivation helped to ensure that the earnings from this wealth were continuous and fell into the proper hands…. Finally, the family farm gave the head of the household a convenient means for controlling and exploiting the labor of members of his own family.” Wright, Political Economy of the Cotton South, 47.

72. Keim, C. Ray, “Primogeniture and Entail in Colonial Virginia,” William & Mary Quarterly 25 (1968): 545–86CrossRefGoogle Scholar.

73. See Hening, Statutes at Large, Vols. 4–8. C. Ray Keim counted 125 Virginia Acts removing entails (11 fewer than reported here). Keim, “Primogeniture and Entail,” 577. For clarity as to what I counted, I have attached an Appendix listing all of the acts. Some on my list were not located in Hening's Indices under “Fee Tail.”

74. Ch. 6, Hening, Statutes at Large, 6:446.

75. Ibid.

76. Ch. 83, Hening, Statutes at Large, 8: 474.

77. Ch. 29, Hening, Statutes at Large, 7:157–58.

78. Coke, Sir Edward, The first part of the Institutes of the Lawes of England (1628), sections 259–61 (New York: Garland Publishing, 1979)Google Scholar; and Brewer “Entailing Aristocracy,” 335.

79. Ch. 52, Hening, Statutes at Large, 6: 319.

80. Ibid.

81. See Sturtz, Linda L., Within Her Power: Propertied Women in Colonial Virginia (New York: Routledge, 2002), 19–41Google Scholar (discussing the importance of legally separating property interests in the Chesapeake world of high mortality and the prevalence of blended stepfamilies); and Carr, Lois Green, Menard, Russell R., and Walsh, Lorena S., Robert Cole's World: Agriculture and Society in Early Maryland (Chapel Hill: University of North Carolina Press, 1991), 142–50Google Scholar (discussing late seventeenth century family structure in Maryland).

82. See Conger, Vivian Bruce, The Widows’ Might: Widowhood and Gender in Early British America (New York: New York University Press, 2009), 89–91Google Scholar (finding that one third of testate widows bequeathed real property, and discussing men's and women's propensity to bequeath to daughters).

83. Brown and Brown, Virginia 1705–1786, 86 (noting that some “entailed slaves to a male heir but devised other slaves to a female heir in fee simple. Others willed land to sons in fee simple but to daughters in fee tail.”)

84. “An Act to Explain and amend the Act, For declaring the Negro, Mulatto, and Indian Slaves, within this Dominion, to be Real Estate” (1727), Hening, Statutes at Large, 4:224.

85. Ibid., 226.

86. Ibid. (emphasis added).

87. Ibid.

88. Tucker v. Sweney, Jeff. 5 (Va. Gen. Ct. 1731).

89. See Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996), 81–101Google Scholar.

90. Marc Egnal, New World Economies: The Growth of the Thirteen Colonies and Early Canada (New York: Oxford University Press, 1998), 15, Table 1.2. More wealth was held in land and other real estate—land constituted 48.6% of total wealth—but having more than one third of wealth in a moveable, more liquid form distinguished the South from other regions. In the Middle Atlantic colonies, land constituted 68.5% of wealth in 1774, and in New England, land constituted 81.1% of wealth. Egnal, New World Economies, 14–15, Table 1.2. See also Jones, Alice Hanson, Wealth of a Nation to Be: The American Colonies on the Eve of the Revolution (New York: Columbia University Press, 1980), 98Google Scholar, Table 4.5.

91. See, for example, Kilbourne, Richard Holcombe, Debt, Investment, Slaves: Credit Relations in East Feliciana Parish, Louisiana, 1825–1885 (Tuscaloosa: University of Alabama Press, 1995), 5Google Scholar (“Slaves represented a huge store of highly liquid wealth that ensured the financial stability and viability of planting operations even after a succession of bad harvests, years of low prices, or both. Slave property clearly collateralized a variety of credit instruments and was by far the most liquid asset in most planter portfolios … . [A]n investment in slaves was a rational choice, given the alternatives for storing savings in the middle of the [nineteenth] century.”)

92. The problem of information costs imposed by restraints on alienation is emphasized in Merrill, Thomas W., and Smith, Henry E., “Optimal Standardization in the Law of Property: The Numerus Clausus Principle,” The Yale Law Journal 110 (2000): 1–70CrossRefGoogle Scholar; Hansmann, Henry, and Kraakman, Reinier, “Property, Contract, and Verification: The Numerus Clausus Problem and the Divisibility of Rights,” Journal of Legal Studies 31 (2002): 373–420CrossRefGoogle Scholar; and Heller, Michael A., “The Boundaries of Private Property,” The Yale Law Journal 108 (1999): 1163–223CrossRefGoogle Scholar.

93. Blackstone, Commentaries, 2:115–16.

94. “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple,” Hening, Statutes at Large, 9:226.

95. “An Act … to Limit Estates in Tail”, 98 (“that no Entailment of any Lands or other Real Estate shall continue to entail the same in any Case whatever, longer than the Life of the Person to whom the same hath been or shall be first given or devised by such Entailment”); and “An Act relating to the Age, Ability and Capacity of Persons,” Acts and Laws of the State of Connecticut, in America (Hartford: Elisha Babcock, 1786), 3Google Scholar (“[I]n order to avoid Perpetuities … all Estates given in Tail, shall be and remain an absolute Estate in Fee-Simple, to the Issue of the first Donee in Tail.”)

96. An Act Providing a More Easy and Simple Method than is Now in Use of Barring Estates Tail in Lands (1792), Acts and Resolves of Massachusetts, 1790–91 (Massachusetts, 1889): 359–60 (Massachusetts Act allowing entails to be barred by deed); “An Act to Facilitate the Barring of Entails” (January 16, 1799), The Statutes at Large of Pennsylvania (Harrisburg, PA: C. E. Aughinbaugh, State Printer, 1911), 16:149–50Google Scholar (Pennsylvania Act allowing entails to be barred by deed);and “An Act Concerning Estates Tail,” (Maryland Act allowing entails to be barred by deed).

97. “An Act … to Limit Estates in Tail,” 97.

98. “An Act Concerning Estates Tail.”

99. See sources cited in note 7, especially Wood, Radicalism, 181–89.

100. “An Act … to do away entails,” (1784), ch. 22, Laws of North Carolina (Newbern, NC: Thomas Davis, 1784), 33–34Google Scholar.

101. An Act declaring tenants of lands or slaves in taille, Hening, Statutes at Large, 9:226.

102. Kent, Commentaries on American Law, 4:20 (“Entailments are recommended in monarchical governments, as a protection to the power and influence of the landed aristocracy; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights, and is equally invited, by the genius of the institutions, to depend upon his own merit and exertions.”); Tucker, St. George, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, (1803) (Union, NJ: The Lawbook Exchange, 1996), 3:119, n. 14Google Scholar. (“[W]hen the revolution took place, a different mode of thinking succeeded; it was found that entails would be the means of accumulating and preserving great estates in certain families, which would … be utterly incompatible with the genius and spirit of our constitution and government.”).

103. Thomas Jefferson to Benjamin Franklin (August 13, 1777), in The Writings of Thomas Jefferson, ed. Ford, Paul Leicester (New York: G.P. Putnam's Sons, 1893), 2:131Google Scholar.

104. The main opponent of Jefferson's bill was Landon Carter, who expressed his views in a 1776 letter to George Washington, in which he states: “It is called docking all entail; but is it not entailing one they cannot dock? The curses of posterity on them who must in that very contest for liberty entail a load of debts upon those who are to come, after they have robbed them of their very estates to pay that debt from, by overturning the very principles of justice on which they built their very claim to freedom. This is what I call sowing the seeds of contention, which must spring up sooner or later, and all from the poisoned soil of popularity.” Landon Carter to George Washington (October 31, 1776), American Archives, ed. Force, Peter (Washington, DC: M. St. Clair Clarke & Peter Force, 1851), 2:1307Google Scholar.

105. “An Act declaring tenants of lands or slaves in taille,” Hening, Statutes at Large, 9:226; “An act for regulating conveyances,” Hening, Statutes at Large, 12:156–57.

106. Art. 51, Georgia Constitution of 1777 (“Estates shall not be entailed … ”); Art. IV, Sec. 6, Georgia Constitution of 1789 (same), in Sources and Documents of United States Constitutions, ed. Swindler, William F. (Dobbs Ferry, NY: Oceana Publications, 1973), 2:449, 454Google Scholar.

107. “An Act to Abolish Entails (July 12, 1782),” Laws of the State of New York (Poughkeepsie, NY: John Holt, State Printer, 1782)Google Scholar, (“[I]n all Cases wherein any Person … would, if this Law had not been made, have been seized in Fee-Tail … such Person … shall, in future, be deemed to be seized of the same in Fee-Simple”); and “An Act to Abolish Entails, (February 23, 1786),” Laws of the State of New York (New York: Samuel Loudon & John Loudon, 1786), 14Google Scholar “[A]ll Estates Tail shall be, and are hereby abolished … .”).

108. An Act … to do away entails, (1784), Laws of North Carolina (Newbern, NC: Thomas Davis, 1784), 33–34Google Scholar.

109. Act of December 19, 1796 (“Every estate in lands or slaves, which on [October 7, 1776] was an estate in fee-tail, shall be deemed from that time to have been, and from thenceforth to continue an estate in fee simple … .”), in Acts Passed at the First Session of the Fifth General Assembly for the Commonwealth of Kentucky (Lexington: James H. Stewart, 1796), 75Google Scholar.

110. “An Act to amend an Act, respecting Conveyances,” (December 22, 1812), in Acts Passed at the Second Session of the Seventh General Assembly of the Mississippi Territory (Natchez, MS: Peter Isler, 1812), 87Google Scholar (“every estate in lands, or slaves, which now is or shall hereafter be created an estate in fee-tail, shall from henceforth be an estate in fee-simple … .”).

111. “An Act Declaring what laws shall be in force in this territory,” (January 19, 1816), in Acts Passed by the General Assembly of the Territory of Missouri (St. Louis: Joseph Charless, 1816), 32–33Google Scholar (“The doctrine of entails shall never be allowed … .”).

112. ch. 11, Hening, Statutes at Large, 4:226.

113. Soltow, James H., The Economic Role of Williamsburg (Williamsburg, VA: University Press of Virginia, 1965), 24Google Scholar.

114. Carman, Harry J., ed., American Husbandry (1775), (New York: Columbia University Press, 1939), 164Google Scholar.

115. Tatham, William, An Historical and Practical Essay on the Culture and Commerce of Tobacco (London: T. Bensley, 1800), 6Google Scholar.

116. Ch. 31, Hening, Statutes at Large, 7:460.

117. “Report of Joint Committee of Council and House of Burgesses” (1748), in Hening, Statutes at Large, 5:441–42 fn. (emphasis added).

118. Ibid. at 442 fn. As described in Part II, the Report also notes that: “Besides the clause for subjecting intailed slaves to be taken in execution for the debts of the tenant in tail for the time being, in effect annuls the former provision; because an unthrifty or designing tenant, by running in debt or borrowing money, and then confessing judgment, and getting his creditors to sue out executions against the intailed slaves, might defeat their settlement.” Ibid.

119. McCain, James Ross, Georgia as a Proprietary Province (Boston: Richard G. Badger, 1917), 263–72Google Scholar (describing requirements for obtaining different plot sizes, with five hundred acres as the maximum); and An Account Shewing the Progress of the Colony of Georgia in American from its First Establishment (London, 1741), 1–10Google Scholar.

120. An Account Shewing the Progress of the Colony of Georgia, 8–10.

121. Savannah Petition to the Trustees of Georgia (December 9, 1738), in An Account Shewing the Progress of the Colony of Georgia, 61.

122. Ibid., 60.

123. Ibid., 61–62.

124. Letter from the Trustees of Georgia to the Magistrates of Savannah (June 20, 1739), ibid., 71.

125. Ibid., 70.

126. Art. 51, Georgia Constitution of 1777 (“Estates shall not be entailed … ”); Art. IV, Sec. 6, Georgia Constitution of 1789 (same), in Sources and Documents of United States Constitutions, 2:449, 454.

127. Jefferson, “Autobiography,” 49.

128. Nevins, Allan, The American States During and After the Revolution, 1775–1789 (New York: Augustus M. Kelley, 1969, Reprint of 1924 ed.), 441Google Scholar (emphasis added).

129. Keim, “Primogeniture and Entail,” 557–61.

130. Ibid., 561.

131. Katz, “Republicanism and the Law of Inheritance,” 29.

132. Alexander, Commodity and Propriety, 40.

133. Bailyn, “Politics and Social Structure in Virginia,” 111.

134. Brewer estimates that from 50 to 75% of all privately owned land was entailed in Virginia. Brewer, “Entailing Aristocracy,” 311, 319, Fig.3, 345.

135. Ibid., 341–43. Brewer infers that “the Virginia legislators consciously sought to introduce into Virginia a type of feudalism.” Ibid., 339.

136. Brewer, “Entailing Aristocracy,” 337. In contrast, the account provided here asserts that Bailyn's intuitions were largely correct. Unlike Bailyn, however, this account explains why one might observe high levels of entailing in the Colonial Era, and abolition after Independence.

137. “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple,” Hening, Statutes at Large, 9:226.

138. Weiman, David F., “Peopling the Land by Lottery? The Market in Public Lands and the Regional Differentiation of Territory on the Georgia Frontier,” The Journal of Economic History 51 (1991): 835–60CrossRefGoogle Scholar. Weiman discusses inequities that emerged in the market for public lands in frontier areas. The profitability of slavery, however, was likely to have led to a similar dynamic in more settled regions.