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.Footnote 1 Property and inheritance law enabled families to retain land, and, therefore, the privileges associated with landed estates, over the generations.Footnote 2 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.
What was the fee tail? An estate in fee tail was created through a conveyance by deed or by will to a man or woman (“the tenant in tail”).Footnote 3 Fee tail or “entailed” land had several principal qualities. When an owner of fee tail land died, the land would automatically descend to the eldest living male son. The records from colonial Virginia reveal that the fee tail land descended to daughters, to be owned jointly, if there were no sons. Second, when land was entailed, it was protected for heirs in the legal process of the common law courts. It was not made liable for debts. Conveyances and mortgages of entailed land were ineffective.Footnote 4
During the American Revolutionary Era, New York, Virginia, Georgia, North Carolina, Kentucky, and later Missouri and Mississippi abolished the fee tail. The prevailing history of the abolition of the entail is based on a narrative most prominently put forth in Thomas Jefferson's Autobiography of 1821. Jefferson introduced the bill to abolish the entail in Virginia in 1776. (A loophole was found in the text of the 1776 statute, and the entail was abolished by a more expansive statute enacted in 1785).Footnote 5 Nearly 50 years later, Jefferson's Autobiography claims personal credit for the abolition of the entail in Virginia as a principal achievement of republican transformation. The Autobiography characterizes the abolition of the entail as preventing rule by an “aristocracy of wealth,” and instead making “an opening for the aristocracy of virtue and talent” and laying “a foundation … for a government truly republican.”Footnote 6 In Jefferson's description, the entail was a device that might have allowed a landed elite to capture economic and political power. Without the entail, republican government was reinforced, because, over time, more property was available to be acquired according to “virtue and talent” and rather than by hereditary privilege. Historians, following Jefferson, have characterized the abolition of the entail as symbolically among the most important legislation defining and giving life to the antiaristocratic ideology of the American Revolution.Footnote 7
This article proposes a new interpretation of the use of the entail and its abolition and reform. Its broader ambition is to provide a more nuanced understanding of the transformation of property law and of the republican values that animated legal reform in the aftermath of the American Revolution. The article asserts that a principal function of the entail in the colonies was to reduce risk in a family-based agricultural economy. The most important implication of entailing property was to shield it from the claims of a landowner's creditors while the property was held in tail. The protection offered by the entail became more significant in 1732, when Parliament enacted a law making all fee simple land and slaves to be liable for debts throughout the British American colonies.Footnote 8 Entailed lands remained as islands of protected wealth.
Although landowners might choose to remove the entail (to convert land and slaves from fee tail to fee simple) to pay debts, the entail dramatically reduced immediate and unforeseen financial risks. Providing a legal means by which individuals can shield family assets from the claims of creditors can, but does not necessarily, favor wealthy landholders or promote the entrenchment of elites. Although there is substantial evidence confirming the dominant historical account that the fee tail kept large estates in Virginia within certain family lines (and secure from being seized by English creditors), historians have largely overlooked that the fee tail was also used frequently to shield small estates from financial risk. Indeed, the fee tail might have buffered against land consolidation. Moreover, as will be described, women were often owners of land in fee tail, in contrast to the prevailing scholarly view that equates the entail with the entrenchment of male political power. The impact on small owners and women transforms the Jeffersonian account of the American Revolution: the abolition of the entail in the Founding Era exposed many property owners, large and small, men and women, to greater economic risk.
If the entail had a useful role in risk management in colonial America, why was it abolished? As this article will describe, the dominance of the Jeffersonian, antiaristocratic characterization of the entail has led historians to overlook that during the 1770s and 1780s, only some state legislatures abolished the entail. Other state legislatures reformed the entail, but retained it. The entail was retained in Pennsylvania where, according to Gordon S. Wood, “[m]ore than any other colony in 1776 the Revolution … was viewed as a social conflict between people and aristocracy.”Footnote 9 Landowners could entail land in Pennsylvania until 1855.Footnote 10 The history of which states merely reformed the entail, and which states abolished the entail, and understanding the purposes of those different approaches, is essential to understanding Founding Era republicanism.
At the heart of Founding Era reforms to property law was a desire for the security of property rights, transparency, and the reliability of title and mortgage records. Concerns about the entail often were concerns about transparency. States reformed the entail by requiring recordation, by limiting entails to one generation, and by lowering the costs of converting entailed land to fee simple. These reforms suggest that one of the most important legacies of the Founding Era in the realm of property was the advance of an institutional revolution toward a property and credit system rooted in a low-cost ability to publicly transmit information about property assets, and the priority of claims against those assets.
Why did some states abolish the entail entirely? Abolishing the entail certainly held symbolic importance as an antiaristocratic measure, particularly in North Carolina and Virginia, which practiced an unusually strict version of entail law. Interestingly, however, the states that completely abolished the entail were those relying most heavily on slave labor: Virginia, Georgia, North Carolina, New York, Kentucky, and later Missouri and Mississippi (South Carolina never recognized the fee tail). As this article will show, as the system of slavery expanded and became more entrenched over the colonial period, it became increasingly incompatible with restraints on alienation of land. To maintain profitability, slave owners needed to actively regulate the relationship between the number of slaves they owned and the amount of acreage the slaves cultivated. Restraints on alienation limited the ability of slave owners to buy and sell land with ease, to better manage this calculus. States relying heavily on slave labor had greater incentives than states with fewer or no slaves to abolish the entail entirely, to increase the liquidity of land markets.Footnote 11 Thus, abolition of the entail increased the effective use of slave property in economic development and made slavery more profitable.Footnote 12 Republicanism and the abolition of the entail cannot be truly understood without an understanding of their connections to slavery.Footnote 13
In sum, this article asserts that the entail should be viewed as a precursor to the property reforms of the mid-nineteenth century that enabled individuals to lower their exposure to financial risk. By entailing the family homestead, an individual shielded the home from creditors’ claims in a manner permitted under the homestead exemption laws widely enacted beginning in the 1840s to protect landowners from financial risk.Footnote 14 Interestingly, allowing women to hold land that was protected from the creditors of their husbands was one of the principal ambitions of the Married Women Property Acts of that period.Footnote 15 Historians have commonly viewed the mid-nineteenth century property reform movement as a popular democratic response to the hardships many faced during the depression of 1838.Footnote 16 Understanding the uses of the fee tail suggests that these mid-nineteenth century reforms are merely one element of a longer history in which Anglo-American property law offered means for interests in land to be shielded from creditors, to allow individuals to reduce risk, in an era before the rise of the welfare state and private insurance markets.
Part I shows how the entail was used as a means of lowering financial risk. Part II examines the legal structure for removing entails, an important aspect of how it was used for wealth shielding. Part III describes the prevalence of fee tail ownership on small estates and by women. Part IV describes the reform (not abolition) of the entail in Northern states to reduce the costs of the fee tail on credit markets and to improve the transparency of the land records. Part V provides evidence from Virginia and Georgia suggesting a relationship between abolition of the entail and slavery. Part VI concludes by examining the impact of the aristocratic-promoting view of the fee tail on recent historical scholarship of the Founding Era.
I. The Fee Tail as a Wealth-Shielding Mechanism
Prior to the American Revolution, the entail typically emerged in the historical records in relation to two concerns: the impact of entailing property on credit conditions, and the institutional mechanisms available to remove entails. Each of these concerns was related to the entail's highly useful purpose. The entail shielded land from the claims of creditors and, therefore, served as a device for managing exposure to financial risk.
How was the entail used to manage financial risk? As mentioned, fee tail land, in contrast to land held in fee simple, was immune from creditors’ claims in the common law courts. The entail allowed landowners to diversify asset holdings. Thus, some land was kept alienable or as security for credit (fee simple land), whereas other land was maintained free of the risk of foreclosure (the entailed land). For example, a petition to the Virginia legislature in 1769 mentions a will devising lands in fee simple “that if he thought proper, he might sell and dispose of the same toward the payment of a debt,” and other land in fee tail, which would be immune from creditors’ claims and presumably kept within the family line.Footnote 17
Under normal circumstances, debtors have strong incentives to pay their debts. Debtors who fail to repay debts will presumably lose access to further credit. Landowners might therefore want to remove the entail to pay debts. Fee tail property could be converted into fee simple property by a legal process, but only at the timing of the fee tail owner. The fee tail, therefore, often served as a means of delaying payment to creditors. The fee tail presumably provided protection during periods of temporary hardship, such as periods of severe recession, bad weather, or plant diseases affecting crop yields, or after accidents or deaths that reduced the family's income stream. In those circumstances, it served as a buffer against the loss of property through involuntary process of law.
The Virginia records of legislative acts to remove the fee tail from land offer extensive documentation of the way in which the fee tail shielded assets from creditors’ claims, often for decades.Footnote 18 To describe one of many examples, by means of a will executed in 1726, Benjamin Harrison inherited an 1800 acre parcel, Joseph's Swamp, in fee tail as well as “other tracts of land, slaves, stock, and other personal estate” in fee simple.Footnote 19 Benjamin died in 1758, leaving his estate to his son. Benjamin's son petitioned the Virginia legislature in 1764 to remove the entail on Joseph's Swamp, explaining that his father “having in his lifetime contracted several debts, for the payment of which all his lands in fee simple, slaves, stocks, and other personal estate, were taken in execution, and sold.” Because the slaves had all been taken to satisfy debts, “for want of negroes and stock to cultivate the same [Joseph's Swamp is] of little use or profit.”Footnote 20 The legislature authorized removing the entail on Joseph's Swamp. As this case illustrates, the entailed land was shielded from creditors, in contrast to the other assets, until Benjamin's son petitioned to voluntarily remove the entail.
An example of using the entail to delay payment to creditors is that of John Spotswood, who inherited a factory for casting pig iron in fee tail. He petitioned the legislature in 1764 to remove the fee tail because under his father's will he owed his sisters 2000 £ Sterling each plus interest and “not being able to borrow money on the security of his [fee tail] lands to discharge the same,” he took out loans by means of bills of exchange on British creditors: “to gain time, and devise some means of raising the money so recovered of him, which bills were returned protested, and now remain unsatisfied, besides which several creditors of [his father] having obtained judgments for their debts, to ascertain the same, forbore to sue out executions thereupon, and are yet unpaid such debts.”Footnote 21
Spotswood's petition explained that he wanted to save his slaves from creditors (they were likely skilled iron workers).Footnote 22 Similarly, a 1766 petition noted that Nathaniel West Dandridge was “possessed of sundry other slaves, as his absolute property, and being indebted in large sums of money, must sell those slaves, or they will be taken in execution, and sold for the payment of his debts, … unless he can be allowed to sell part of the [entailed] lands to enable him to pay his debts.Footnote 23 Again, the entailed land was shielded from creditors until the time when the owner chose to file a petition.
In Virginia, the loss of all other assets and the need to remove the entail to reorganize the family finances was a highly common justification for removing entails. An act of 1734, for example, removed the entail on land so that “Anne and Elizabeth, and their poor families, may hereafter be comfortably subsisted,” noting that they were “all in miserable circumstances.”Footnote 24 Another emphasized that the entailed land in question “is very barren, and yields but a small profit.”Footnote 25 A third described the owner's fee simple land, slaves, and personal estate as “insufficient for the payment of his debts” and the fee tail land as “very barren and poor.”Footnote 26 These types of cases dominate the petitions.Footnote 27 A 1765 Virginia law addressed the detrimental effect of the fee tail on the rental market for land, noting that “many large tracts of entailed lands remain uncultivated, the owners not having slaves to work them, and no persons inclining to take leases of such lands, because those leases are thought to be valid no longer than during the life of the tenants in taille …”Footnote 28 The Act held all leases good for a term of 21 years, regardless of whether they were entailed.
An incident involving the legislature of Antigua demonstrates the entail's role as a wealth-shielding device in trans-Atlantic credit relationships. Pursuing an unusual course of action that violated English law, a London creditor persuaded the legislature of Antigua to remove the entail on one of his debtors’ estates, making the land available for him to seize by process of law. The governor of Antigua wrote to the Board of Trade requesting that it disallow the legislature's private act, rightly noting that this was an unprecedented use of legislative authority. According to the governor,
[T]he method [of barring the entail] is very common, but the manner of obtaining it most extraordinary and unprecedented, for it is passed upon the application of a creditor to a person who never had a title to this estate; … I apprehend there can be no instance shewn where any legislature ever interposed so far as to divest a tenant in tail and barr his issue … unless it had been upon his own application or he had been privy or consenting to it … . This is in my apprehension so extraordinary a stretch of power in the Legislature, for it is actually taking upon themselves to convey away the estates of the planters to whom they please, that it ought to meet with the utmost discountenance from your Lordships.Footnote 29
In this exceptional case, the Antiguan legislature removed the wealth-shielding entail to benefit a creditor without the owner's consent. The governor's letter reveals, however, that under English law, the wealth-shielding function of the entail operated unless a debtor holding entailed land voluntarily petitioned for the entail to be docked.
In sum, the colonial records provide innumerable examples of the entail's wealth-shielding function in operation. The legal protections to entailed land offered in the common law courts provided a buffer against short-term and unforeseen financial problems.
II. Removing Entails by Process of Law
The prevailing interpretation of the entail has paid little attention to the fact that the entail could be removed at the discretion of individuals. Understanding the means by which the entail could be removed in the various colonies—the subject of this section—is also important to understanding how the entail could be a flexible instrument of risk management.
A. Barring Entails under English Law
English law served as the foundation for colonial property law. In England by the fifteenth century, entails could be removed voluntarily by the owner of entailed land.Footnote 30 In England, the most widely used process to remove an entail was the “common recovery,” which involved a series of conveyances to and from an official against whom any heir would have no effective remedy.Footnote 31 The process was formalized and recorded by a court judgment in favor of the new owner of the land, who held the land in fee simple, free of the entail.Footnote 32 According to James Kent's description of English and American practice, “A common recovery removes all limitations upon an estate tail, and an absolute, unfettered, pure fee simple, passes as the legal effect and operation of a common recovery.”Footnote 33 The common recovery was costly—it involved compensating multiple lawyers and officials—but it transformed the entail into a shield against financial risk that could be used strategically.
Because the entail could be removed, members of the English landed elite relied on different legal devices to secure land more permanently within their families. Many estates in England were bound by “strict settlements,” which involved a devise of the land to the chosen devisee (often the eldest son) in the form of a life estate with limited or no powers of conveyance and with trustees appointed to preserve the contingent remainder on behalf of future generations.Footnote 34 The entail was often used in association with a family settlement agreement entered into at the time of a marriage that established charges on the land for the landowner's mother, wife, or younger siblings.Footnote 35 These commitments of income and trust devices, which the equity courts upheld, were far more powerful restraints than bare entails on landowners’ abilities to subsequently sell or mortgage land.
B. Importing the Common Recovery to the Colonies
In colonial America, in contrast to England, family settlements and strict settlements had far less impact on land use.Footnote 36 The flexibility of the entail was viewed as a remedy for any disadvantages that recognizing entails might otherwise have. A 1750 Pennsylvania statute confirming the validity of common recoveries in the colony, for example, stated that: “[T]he entailing of estates within this province without a provision by law for barring them would introduce perpetuities, prevent the improvement of such estates, disable the tenants-in-tail to make provision for the younger branches of their families, prove of general detriment to the province and be attended with manifold inconveniencies.”Footnote 37
According to the preamble, the availability of the common recovery ensured that the entail would not conflict with the “improvement of … estates,” suggesting that land might be held in an unalienable, entailed form at some time, but that the entail could be removed either for the land to be used as leverage for credit—providing the funds for the improvements—or simply to provide incentives for the tenant in tail to invest in and develop the property. Allowing the tenants in tail to bar entails in order to “make provision” for the younger members of their families suggests that the entail might be removed strategically if the tenant in tail chose to make an inter vivos transfer or to devise land to a child other than the eldest male heir.
The flexibility underlying the Pennsylvania approach was common throughout the Mid-Atlantic and New England colonies. With regard to Massachusetts, for example, James Sullivan's 1801 treatise, History of Land Titles in Massachusetts, states that “Before the revolution, the [fee tail] was easily overturned by a common recovery.”Footnote 38 A Maryland statute of 1782 notes that “common recoveries are considered as a mode of conveyance by which tenants in tail are enabled to convey and dispose of their lands and tenements.”Footnote 39 Similarly, a New Jersey statute of 1784 notes that heirs can “su[e] out Recoveries, in order to dock … Entails.”Footnote 40 Alexander Hamilton's legal papers provide an example of Kilian Van Rensselaer, who created an entailed estate inter vivos by conveying land in tail to his brother Henry in 1704. Henry's eldest son John inherited the property, and docked the entail by common recovery in 1763. Then, in 1783, John drafted a will that left the property in tail to his grandson, (which proved ineffective because New York had abolished the entail).Footnote 41 In this case, the entail remained on the land for 59 years, but the common recovery process was available to the family when they chose to procure it.
C. Substituting the Common Recovery with Private Acts of the Legislature
Unlike Pennsylvania and other colonies, however, the legislatures of Virginia, North Carolina, and islands such as Barbados and Antigua, diverged from English law and required private acts of the legislature to bar an entail.Footnote 42 Why did some colonies adopt the legislative approval process? The colonies had few lawyers and there were problems in importing English law in the absence of a sophisticated legal culture.Footnote 43 In 1727, the Governor of Antigua explained to the English Board of Trade that, in reference to common recoveries, (likely because of the lack of lawyers) “no method of that sort was ever put into practice” and “the Legislature very wisely and politickly considering the inconveniences that might arise from the want of it in a trading country, instituted the method of cutting off entails by private Acts of Assembly.”Footnote 44
The most likely explanation for reliance upon the legislative approval process in Virginia and North Carolina, however, is that the legislatures in these colonies determined that legislative approval provided advantages to local landowners. An act of the legislature established the strongest form of security that the removal of the entail would be free from later challenge. In addition, moving to the legislative approval process shifted conveyancing law away from the privacy norm that governed conveyancing practices in England: An act of the legislature widely publicized the removal of the entail. The legislative acts barring entails notified the creditor communities both locally and in London as to status changes in colonial estates because the legislative acts of the colonies choosing this approach were subject to review and approval by the Board of Trade in London.Footnote 45 Creditors were likely to value information relating to whether the entail on their debtors’ land had (or, equally important, had not) been removed, because removal signaled a landowner's desire to alienate the property. Thus, legislative approval provided certainty and publicity to the barring of an entail.
D. Wealth-Shielding under Two Modes of Legislative Approval
1. Wealth-Shielding where Legislatures Routinely Docked Entails
The colonies adopting a legislative approval process to bar entails took two distinct approaches. In 1677, the Barbados legislature enacted a statute “to enable every tenant in tail to bar the issue in tail.”Footnote 46 The Barbados statute books are filled with private acts to bar entails, for the purpose of selling the property for cash or mortgaging it. As an example, in 1717 the legislature passed a private act to dock the entail on five properties and slaves inherited in tail by “Martha Lenoir … Daughter and Heir of William Cragg, … Merchant, deceas'd.” According to the act, upon examination Martha explained that “she is very desirous to have the Entail on the said Land … and Negro Slaves, docked and barred, to the end that the same may be sold, and the Money arising by such Sale, placed out and improved for the better Increase of the said Martha's Fortune.”Footnote 47 The act held that, “the said Martha Lenoir shall be adjudged and taken to be seized thereof, as of a good, pure, absolute, and indefeasible Estate of Inheritance in Fee Simple.”Footnote 48 As another example, in 1715, the legislature passed “An Act to Dock the Entail … and to enable George Nicholas, Esq., and Susannah his Wife, to mortgage or sell the same, with the Negroes thereto belonging.”Footnote 49
None of the Barbados private acts docking entails mention the rights of heirs. Docking the entail to allow Martha Lenoir to sell her land and slaves to increase her “Fortune” suggests a lack of regard for securing property within her family line to the benefit of male heirs. As a general matter, the Barbados private acts seem entirely routine.Footnote 50 The approach toward entails of the Barbados legislature is typical of the West Indies. The correspondence between the Board of Trade and the other West Indian colonies, for example, is riddled with references to colonial acts barring entails.Footnote 51 The Board of Trade typically rubber-stamped these acts.Footnote 52
2. Virginia's Protection of the Rights of Heirs
In the early eighteenth century, the Virginia legislature departed from English law and adopted an unwritten rule that it would only approve petitions to bar an entail when the landowner simultaneously agreed to entail other land or slaves of equal or greater value. In practice, this unwritten rule meant that entails could not be barred to disinherit the heir or for the purpose of acquiring credit or cash to use generally. Although the precise origins of this approach in Virginia are obscure, it may have been modeled on the strict entail law of Scotland (criticized by Adam Smith in The Wealth of Nations).Footnote 53
Because of the equal value limitation, the Virginia legislature allowed landowners to remove entails chiefly to substitute one parcel of land for another, to raise cash to purchase slaves, or to pay debts. As an example, in 1765, the Virginia legislature docked the entail on lands held by John Gregg to allow him to pay off debts and use the excess proceeds to buy other land and slaves that would be held in fee tail. The legislature explained that the justification of the act was that:
the lands … together with all his slaves and personal estate, were insufficient for the payment of the [testator's] debts, and the maintenance and education of his children, … [and have] become rather a burthen to him than of any real benefit or advantage, and are moreover very barren and poor, and in arrears to the lord proprietor … for many years quitrents, which he is utterly unable to pay … it would be greatly to the advantage of the said John Gregg the son, and the heir of his body, if he was permitted to sell the said entailed lands [and purchase] other lands fitter for cultivation, and the residue, after discharging the quitrents … in slaves to be annexed to the lands so to be purchased, and to descend, pass, and go therewith, to the heirs of the body of the said John Gregg.Footnote 54
As a similar example, in 1764, the Virginia legislature docked the entail on lands held by William Cary explaining that “the said William Cary having no slaves to work the said land the same is of little profit to him, and it hath been represented to this assembly that it will be for the benefit of the said William Cary, and his issue, to sell the said entailed lands, and lay out the money in the purchase of other lands and slaves, to be settled to the same uses”Footnote 55 (settled meant entailed).
Again, this “strict” version of the entail differed greatly from English law and the law of most other colonies. Although the Virginia private acts that docked entails describe landowners in circumstances that appear financially tenuous, the strict form of the entail adopted in Virginia, and replicated later in North Carolina, potentially could lock property within elite families through the generations.
There were, however, two ways that tenants in tail could avoid Virginia's strict system of entail. The first was by petitioning the legislature to convert assets held in land into wealth held in the form of slaves (such as in the private act docking the entail on William Cary's land, described previously). The second was under a statute enacted in 1734, described in the next section, which allowed owners of small plots to bar the entail at a low cost.
As will be described in greater detail, when entailed land was sold and the profits were used to purchase slaves in tail, those profits were converted into an asset with no immunity from seizure by creditors. The tenant in tail might then strategically defeat the interests of the next male heir by borrowing against the value of the slaves. As stated in a 1748 report from the Virginia legislature to the Board of Trade, “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 [on the next heir].”Footnote 56
As reported in the Appendix, my study of 133 private acts to remove entails in Virginia revealed that 25 of the acts removed an entail on land in return for a commitment to entail slaves of equal value. Forty-seven of the acts removed an entail on land on condition that new land and slaves were entailed. The overall effect of these acts (constituting 54% of the total) was to increase the amount of wealth held in the form of slaves (i.e., exposed to creditors) in relation to the wealth held in land (i.e., shielded from creditors). There was only one petition to remove the entail on slaves, for the purpose of selling them to buy land.Footnote 57 In addition, in fourteen cases of extreme hardship, the Virginia legislature allowed the petitioner to sell entailed land for cash to pay off debts, bringing the total number moving assets into a more liquid form to 86 or 64.7%.
III. The Entail, Small Estates, and Female Landowners
The prevailing view that the entail was a legal device used to perpetuate a propertied ruling elite presupposes that the entail was used primarily on large estates that descended through a line of eldest male heirs. In contrast, upon closer examination, the evidence suggests that small landowners used the entail to shield wealth from creditors, and that estates in fee tail were frequently owned by women in colonial America.
A. The Entail and Small Estates
With regard to small estates, as early as the mid-seventeenth century, property law reformers in England proposed ways to make the law of fee tail more responsive to the needs of small holders. The most frequently proposed reform involved lowering the cost of removing the entail on small estates. John Cook wrote that “a poore Farmer, or Cottager might leave some small portions to his yonger Children without paying one or two yeares purchase for the charge of a fine and recovery, what an ease might this be to men of small estates to passe them from one to another, and to cut off Intailes by a deed in writing without so much solemnitie and expence.”Footnote 58 Similarly, Matthew Hale complained that removing an entail on 1 acre of land cost 50 s and proposed reducing this cost to 10 s.Footnote 59 That Hale would include in his treatise concerns about entails on 1 acre parcels suggests that the wealth-shielding benefits of the entail were well known to small English landowners. Hale's concern was obviously not the corrupting influence of entailed 1 acre parcels on politics. Therefore, it is not surprising that the English enclosure movement of the late eighteenth century took place primarily by means of private Parliamentary acts that were effective to break entails.Footnote 60
Virginia is the British American colony historians most frequently invoke to emphasize that the fee tail was used to perpetuate a landed elite. Nonetheless, Jefferson's 1776 Virginia Act abolishing the fee tail gave as one justification that “the method of defeating such estates, when of small value, was burthensome to the publick, and also to individuals.”Footnote 61 Earlier, in 1734, the Virginia legislature enacted a statute for “poor people seised in fee tail of small and inconsiderable parcels of land.”Footnote 62 The law offered a low-cost procedure for owners of entailed parcels worth £200 or less to bar the entail, converting it into an estate in fee simple.Footnote 63 The statute describes that, for poor people, the available method for removing entails was “so expensive … that they are not able to go through it; and therefore the docking intails by easier methods, will be a great relief to such poor people and their families, who, without it, must be confined to labour upon such small parcels of land, when, by selling them, they might be enabled to purchase slaves, and other lands more improveable.”Footnote 64
Under the statute, provided that the parcel in question was not contiguous with other entailed land, the entail could be removed by means of a writ of ad quod damnum from the secretary's office to the sheriff of the county commanding him to inquire whether the land was worth less than £200. If it was, then the sheriff could issue a new deed in fee simple and all remainder interests would be barred.Footnote 65 North Carolina passed an act in 1749 introducing the same process for breaking entails on small estates, copying almost verbatim the text of the Virginia Act.Footnote 66 The historians Robert E. Brown's and B. Katherine Brown's survey of the data led them to conclude that “in all probability [the entails] docked by writ of ad quod damnum were by far … more numerous” than entails docked by legislative act.Footnote 67
Although the statute mentions relieving poor people of the burdens of the entail, the Browns’ survey found that wealthy Virginians used the ad quod damnum process to remove entails when possible.Footnote 68 Richard Henry Lee, a member of the Virginia gentry, wrote in a letter “You know I have got the entail on my estate from my father dockt by writ of ad quod damnum.”Footnote 69 A member of the secretary's office stated that the process was used “to defeat entails on land, to enable them to sell and convey the same, in fee simple.”Footnote 70
Why would owners of small parcels devise their land in fee tail? The likely reason was to shield the land from financial and other risks. Small landowners, even more so than owners of vast estates, operated on a tight margin. Entailed land could not be seized through the process of law in the common law courts. The entail provided families with domestic security in an uncertain economic environment.Footnote 71
How, in contrast, would wealthy individuals have parcels small enough to qualify for the ad quod damnum process? Often, wealthy individuals chose to entail small parcels for the purpose of wealth shielding, leaving other assets in fee simple so as to be available for mortgages and market transactions. C. Ray Keim's study of Virginia found that family homes were more likely to be devised in tail, with the outlying land devised in fee simple.Footnote 72 Entailing the family home closely mirrors the safeguards on family wealth introduced in the property reforms of the 1840s. The homestead exemption laws widely enacted in the mid-nineteenth century protected the family homestead, to provide families with a minimum baseline of financial security. Entailing the family home had the same risk-reducing effect.
B. Female Owners in Tail
Aristocratic power by English tradition passed from eldest male heir to eldest male heir. The Virginia records reveal, however, that females were often owners of land in tail. This article examines the issue quantitatively, in the private acts of the Virginia legislature removing entails during the colonial era. As listed in the Appendix, there were 133 acts removing entails reported in the Virginia statute books.Footnote 73 Out of the 133 private acts of legislation, 26, or 19.5%, were addressed to women who owned entailed land or slaves. A far greater number reveal that women owned the entailed land at some time, even though the current petitioner was a son or grandson.
Why were women owners of fee tail land? Some fathers and mothers devised entailed land or slaves outright to their daughters with no further explanation. William Thompson owned 300 acres in fee simple. Thompson's will of 1686 devised 300 acres “to his daughter Elizabeth, and the heirs of her body lawfully begotten” [meaning in fee tail].Footnote 74 The legislature noted that after Thompson's death, Elizabeth “entered into the same, and became thereof seised in fee-tail … .”Footnote 75 The text of the act in this case, and similar private statutes, places no great emphasis on the fact that a woman inherited entailed land. In fact, when Elizabeth Brooke inherited 578 acres in tail by means of a will written in 1725, it was reported that “some disputes [arose] in the family, concerning the will,” but the devise to Elizabeth Brooke “w[as] confirmed” and the settlement was “recorded in the general court.”Footnote 76 To provide another example, William Churchill's 1710 will devised 2280 acres in tail to his son Armistead, but provided that if Armistead died without heirs, his daughter Elizabeth would inherit the 2280 acres in tail, and if she died without issue, his daughter Priscilla would inherit the 2280 acres in tail.Footnote 77
In other cases, it appears that parents had given birth only to daughters or that a son had died, leaving a daughter as the only remaining heir of the entailed land. Under English law, when fee tail owners had no sons, daughters would inherit the fee tail land jointly, as co-parceners.Footnote 78 Virginia followed this practice. As an example, Daniel Parke's will of 1670 devised 1678 acres to his son Daniel in fee tail.Footnote 79 Daniel (the son) inherited the land, but when he died, his only issue were his two daughters, Frances and Lucy. The entire estate was partitioned, and Lucy became the sole owner of the 1678 acre parcel in fee tail. Lucy gave birth to two daughters, one of whom died, leaving Wilhelmina to become the sole owner in tail of the 1678 acre parcel.Footnote 80 Therefore, although the original devise was to Daniel, by process of law, the subsequent two generations of fee tail owners were female.
The colonial Chesapeake was plagued by high mortality rates, particularly for men. Blended families with stepchildren and combined resources were common. Landowners’ wills often contained carefully crafted devises that used the entail to legally separate property estates in anticipation of future marriages and additional children.Footnote 81 It was a society with many widows, who were more likely to devise land to daughters.Footnote 82 In this setting, female landownership was not unusual.
Female owners of entailed land often married and, under coverture and by custom, their husbands gained managerial control over the land, but the land was protected entirely from the husbands’ creditors. When the female tenant in tail died, the land descended to her eldest son. It might be said that the female landowner was, therefore, only a custodian of land ultimately destined to continue in the male line. Nonetheless, as a practical matter, many Virginian women were legally owners of entailed land that could not be sold or mortgaged by their husbands and that could not be seized to pay their debts, much like the regime enacted under the Married Women's Property Acts of the 1840s.
The Browns’ study found that some Virginia wills that devised land to one or more daughters in tail, also devised land to sons in fee simple.Footnote 83 The Virginia records, however, also reveal the opposite situation, with sons inheriting entailed land and daughters inheriting land in fee simple or monetary portions. Virginia testators clearly understood the tradeoffs between entailed land (offering wealth shielding) and fee simple land (offering alienability and testamentary freedom).
In sum, the incidence of female ownership of entailed property was highly significant. The 19.5% of petitions involving women owning entailed property likely reflect general ownership patterns throughout the population. It is safe to presume that abolishing the fee tail had a dramatic effect on many women landowners as well as on owners of small parcels of entailed land.
C. The Entail, Slaves and Credit Markets
Perhaps the most explicit example of the connection between the entail, wealth shielding, and credit markets arose in the determination of whether to characterize slaves as “real property” or as “chattel property.” If slaves were “real property,” under English law they could be entailed and shielded from creditors and, in eighteenth century terms, “annexed” to the land. Annexing meant that the slaves would follow the land in inheritance proceedings. (At a minimum, the judge administering the estate could maintain the proportion of slaves to land when dividing the land according to the terms of a will.)
In contrast, if slaves were characterized as “chattel property,” the slave–land connection was broken. With regard to real property, the succession law provided for primogeniture: that the eldest son would inherit all of the decedent's land. The chattel property, however, was distributed equally among all the children after the decedent's debts were paid. The problem was that if an eldest son inherited land, but the slaves were divided up, the land would sit idle until funds could be raised to purchase slaves from the other children or in the market. Conversely, children inheriting slaves, but no land, would need to sell or lease the slaves to put them to productive use.
In Virginia, slaves were initially treated as chattel, but the slave–land connection problem frequently arose. In 1727, the Virginia legislature enacted a statute allowing slaves to be entailed to “preserve slaves for the use and benefit of such persons to whom lands and tenements descend … for the better improvement of the same.”Footnote 84 The statute noted, however, that Virginians often obtained credit on the basis of their visible property, and that “the greatest part of the visible estates of the inhabitants of this colony, doth generally consist of slaves.”Footnote 85 Accordingly, the law clarified that, in contrast to land, entailed slaves would not be immune from creditors’ claims. It explained that “to bind the property of slaves, so as they may not be liable to the paiment of debts, must lessen, and in process of time, may destroy the credit of the country.”Footnote 86
To enhance credit, the statute provided that even entailed slaves “shall be liable to be taken in execution, and sold for the satisfying and paying the just debts of the tenant in tail,” with the exception of those slaves allocated to the widow as dower.Footnote 87 The compromise, therefore, was to allow the entail of slaves in inheritance proceedings, treating them as real property in order to preserve the slave–land connection as a form of default succession rule; but, second, to treat slaves as chattel property in debtor/creditor proceedings in order to enhance credit liquidity. The Act was interpreted in a 1731 Virginia court opinion, Tucker v. Sweney, in which the judge determined that “Negroes notwithstanding the Act making them Real Estate remain in the Hands of the Ex'ors by that Act as Chatels and as such do vest in them for payment of Debts So that in this Case they are considered no otherwise than Horses or Cattle.”Footnote 88 In sum, slaves were land for purposes of inheritance proceedings and chattel, “no otherwise than Horses or Cattle,” in proceedings on debts.
This bifurcated approach—considering slaves as real property for succession purposes, but as chattel property with regard to creditors—is typical of the laws in other American and West Indian colonies.Footnote 89 The characterization of slaves as chattel for the purposes of creditors’ claims was highly significant for Southern credit markets. In 1774, slaves constituted 35.6% of the total wealth held in the South.Footnote 90 Slaves became the primary form of collateral for debts, and individuals mortgaged land only when they wanted to leverage their property to the maximum extent that creditors would accept.Footnote 91
Thus, in creditors’ suits in Virginia, the law of entail was abolished for slaves in 1727. The wealth-shielding benefit of the entail was not extended to slaves, which gave rise to the principal inconvenience relating to entailed land: What to do when slaves were sold to pay debts and the entailed land sat unproductive? The liquidity of slaves and illiquidity of entailed land were normal features of a slaveowner's economic calculus and, as this article suggests, likely the principal tension leading to eventual abolition of the fee tail estate in 1776.
In sum, the numerous discussions of entails held by small owners; the prevalence of female owners of entailed land; and the fact that individuals frequently removed entails to pay creditors, to gain cash, or to buy slaves or cheaper land suggests that to characterize the entail exclusively as entrenching and perpetuating a landed elite is inadequate. A central role of the entail was to shield wealth from creditors and to reduce immediate and unforeseen financial risk. The next section examines why many states reformed or abolished the entail.
IV. The Founding Era Institutional Reform Toward Greater Transparency
Where the entail was reformed in the Founding Era, rather than abolished, the reforms were part of a broader movement to eliminate English conveyancing practices, to lower fees, to increase transparency in credit markets, and to enhance the reliability of the land title registration system. States, such as Pennsylvania, that reformed the entail after the Revolution, addressed two of its principal problems: (1) that the entail increased the costs of credit because the entailed status of land was not likely to be readily apparent to outside creditors and purchasers; and (2) the high costs of the common recovery, the English conveyancing procedure used to remove entails from land.Footnote 92 In sum, the reformers wanted the entail to be used more inexpensively, flexibly, and transparently.
The cost to credit markets of the lack of transparency of the fee tail was a general problem, which influenced state legislatures to reform and repeal the fee tail. Blackstone and others more generally criticized the fee tail estate for its negative impacts on credit markets related to land. According to Blackstone, before the fee tail could be barred by a common recovery, “creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our antient books are full.”Footnote 93 Similarly, the Virginia act abolishing the entail gave as a primary justification that the entail “tends to deceive fair traders, who give a credit on the visible possession of such estates.”Footnote 94
How did the entail affect credit markets? In most colonies, to verify with certainty that land and slaves were not encumbered by entails, creditors or purchasers would have to search the entire body of land records and probate records and, depending upon the colony, either the records of the court of common pleas or the legislative acts, because land could be entailed in wills (probate records) as well as deeds (land records). Purchasers and creditors might need to search the entire body of records, because entails ran with the land and, for example, an entail created in 1660 would still be valid against a mortgage creditor in 1760. To find the removal of an entail, one would need to look for either records of a common recovery in the court records or a legislative act.
States in the Middle Atlantic and Northeast reformed the entail in the Founding Era: (1) by requiring the recordation of conveyances that entailed land; (2) by limiting the duration of an entail to the current generation; and (3) by substituting the English common recovery with a streamlined deed approach. Each of these reforms made land title records far more reliable and useful. By statutorily requiring recordation of all conveyances that entailed land, the interest of a subsequent purchaser or mortgage lender could no longer be undermined by an unrecorded devise or conveyance.
Second, New Jersey's and Connecticut's laws limiting entails to one generation boosted the reliability of the land records.Footnote 95 Under English and colonial law, the entailed status of land carried through the generations until the entail was formally removed. It was, therefore, possible to produce a will from decades earlier proving an interest in tail by someone who was not in possession of the land. Limiting the entail to one generation eliminated that problem, while shielding the land, unless and until the owner chose to remove the entail.
Third, the Pennsylvania, Massachusetts, Maryland, and New Jersey statutes allowed owners in fee tail to convert entailed land into fee simple by a simple deed process.Footnote 96 These statutes eliminated the need for the costly English common recovery. As the 1784 New Jersey statute reforming the entail stated that “Heirs are put to great Expence in suing out Recoveries, in order to dock such Entails.”Footnote 97 Similarly, Maryland's entail reform of 1782 addressed the “heavy expence and great inconvenience” of common recoveries.Footnote 98 These reforms were similar to those proposed in mid-seventeenth century England by John Cook and Matthew Hale concerning the impact of entails on owners of small parcels, described previously.
The movement to legally reform the entail in states such as Pennsylvania, Massachusetts, Maryland, New Jersey, and Connecticut has been overlooked in the historical accounts emphasizing the antiaristocratic symbolism of the abolition of the fee tail. In these states, the primary Founding Era reform movement was directed toward lowering costs and increasing transparency in the legal institutions established to clear title and to promote land and mortgage markets. These reforms, however, were entirely consistent with “republicanism” in the sense of advancing meritocracy. Recording title, conveying land, and obtaining credit on the basis of public land records promoted a society based not on family reputation or patronage ties, but on the basis of recorded assets. These states, however, did not abolish the fee tail to advance that goal.
V. The Abolition of the Entail in the South
If the entail was primarily used to manage financial risk, why did several states abolish the practice after the Revolution? One aspect of the republicanism interpretation is clearly correct: Political leaders in the Founding Era wanted to eradicate all vestiges of hereditary privilege. Various state constitutions and, ultimately, the United States Constitution prohibited titles of nobility. The hatred for government-sanctioned privileges based on birth, and not on merit, was deep and intense.Footnote 99 The structure of the fee tail—son to eldest male heir, daughter to eldest male heir—was reminiscent of English birthright and repugnant to republican ideals.
It is clear from the historical record that abolishing the entail had symbolic importance in advancing republicanism in the Founding Era in Virginia and North Carolina, where common recoveries had been replaced with the strict version of the legislative approval process. North Carolina's law abolishing entails is the most striking evidence that the intention was to equalize wealth. It states that “entails of estates tends only to raise the wealth and importance of particular families and individuals, giving them an unequal and undue influence in a republic, and prove in manifold instances the source of great contention and injustice.”Footnote 100 Virginia's 1776 law abolishing entails similarly explains as one reason for the act that “the perpetuation of property in certain families, by means of gifts made to them in fee taille, is contrary to good policy.”Footnote 101 In addition to Jefferson's 1821 autobiography, legal thinkers such as James Kent and St. George Tucker interpreted abolishing the entail as a measure taken against inherited privilege.Footnote 102
One peculiar feature of the republicanist interpretation of the abolition of the entail in Virginia, however, is the lack of opposition to the reform. One would suppose that a revolution in political structure would have opponents. Jefferson wrote to Benjamin Franklin in 1777 stating that “With respect to the State of Virginia in particular, the people seem to have laid aside the monarchical, and taken up the republican government, with as much ease as would have attended their throwing off an old, and putting on a new suit of clothes. Not a single throe has attended this important transformation.”Footnote 103 The historian Allan Nevins noted that Jefferson was “amazed” by the rapidity with which his bill passed.Footnote 104
Despite the purported ideological underpinning of abolishing the entail, the broad popular support for the reform is likely better explained by the economic benefits that many perceived would follow from abolishing the entail. Impediments to liquid land markets imposed unique costs to a plantation agricultural system based on slave labor. It bears emphasis that the entail was only abolished in Virginia (1776, 1785),Footnote 105 Georgia (1777),Footnote 106 New York (1782, 1786),Footnote 107 North Carolina (1784),Footnote 108 Kentucky (1796),Footnote 109 and later Mississippi (1812),Footnote 110 and Missouri (1816)Footnote 111 and that South Carolina never recognized the entail.
The next Sections discuss the practical economic costs of the entail during the colonial period in Virginia and Georgia.
A. The Entail, Credit Markets, and Slaves
Colonists were highly concerned about the impact of the entail on credit markets. As described, Virginia abolished the entail with respect to creditors’ claims on slaves in 1727 because to do otherwise, according to the legislature “may destroy the credit of the country.”Footnote 112 The 1727 entail law, however, raised a new set of problems in relation to a central feature of Southern land use practices. Increasing investments in slave labor led to an emphasis on intensive staple crop production associated with high rates of land exhaustion. With regard to tobacco, for example, the historian James H. Soltow has noted that “the exhausting nature of tobacco cultivation generally required abandonment in three or four years. Exhausted land returned to timber regained some of its fertility in twenty years or so, but it was less productive than new lands.”Footnote 113 Agricultural manuals from late eighteenth and early nineteenth century emphasized that tobacco grown on fresh lands was of better quality, which meant that tobacco cultivation typically involved moving slaves to clear and cultivate new land on a continual basis. According to American Husbandry, a book on colonial agricultural practices published in 1775 for the benefit of Londoners invested in the colonies “There is no plant in the world that requires richer land, or more manure than tobacco; it will grow on poorer fields, but not to yield crops that are sufficiently profitable to pay the expences of negroes &c… . [T]his makes the tobacco planters more solicitous for new land than any other people in America, they wanting it much more.”Footnote 114
Similarly, a pamphlet from 1800 noted that in Virginia, “new ground … may be there considered synonymous with tobacco ground … . for a Virginian never thinks of reinstating or manuring his land with economy until he can find no more new land to exhaust, or wear out, as he calls it.”Footnote 115 In 1761, the Virginia legislature removed an entail on land because the land was “cut down, and the soil exhausted” and the owner could then entail other land which “being fresh, might be worked with slaves to a greater profit for the estate.”Footnote 116 Slaveowners constantly moved their slaves to new areas where the slaves cultivated new land to greater profit. The mobility of plantation labor forces, however, increased the slave-land tension and increased the effect of uncertainty over the status of land and slaves—that is, entailed or not—and resulted in a dampening effect on credit liquidity.
In the 1740s, Virginians found that the benefits of entailing slaves were overwhelmed by the problems created in moving entailed slaves to new areas, and the ensuing confusion as to which slaves were entailed and which were not. In 1748, the Virginia legislature repealed the 1727 statute (allowing slaves to be entailed), and drafted a report for the Board of Trade in England explaining the problems brought about by entailing slaves. The report emphasizes the inefficiency of having a plantation's slave population expand but remain “annexed” to the same plot of land; the profitability of moving slaves to new, uncultivated land; and the weaknesses of existing institutions to properly notify creditors as to the status of the “collateral” upon which they might extend credit. In the language of the report:
[The Assembly] saw that slaves could not be kept on the lands to which they were annexed without manifest prejudice to the tenant in tail. Because in time they overstocked the plantations, and often the tenant was the proprietor of fee simple land, much fitter for cultivation than his intailed lands, where he could work his slaves to a much greater advantage. But on the other hand the frequent removing and settling them on other lands in other counties and parts of the colony, far distant from the county court, where the deeds or wills which annexed them were recorded, and the intail lands lay; the confusion occasioned by their mixture with fee simple slaves of the same name and sex, and belonging to the same owner; the uncertainty of distinguishing one from another, after several generations, no register of their genealogy being kept, and none of them having surnames, were great michiefs [sic.] to purchasers, strangers, and creditors, who were often unavoidably deceived in their purchases, and hindered in the recovery of their just debts. It also lessened the credit of the country; it being dangerous for the merchants of Great Britain to trust possessors of many slaves, for fear the slaves might be intailed. And should credit be destroyed in a trading country, as ours may be properly called, the consequence might be fatal.Footnote 117
The standard antiaristocratic view of the entail portrays those who entail property as members of a landed elite, cushioned from the various risks that typically face farmers. The report paints a different picture, in which the “merchants of Great Britain” must be reassured, because an unwillingness on their part to extend credit would hurt the slave economy. The report emphasized that:
Virginia estates are attended with a certain large and yearly expence in furnishing these slaves with cloathing, food, and tools, paying their public poll taxes, and the quit rents of the lands. The profits arising from the crops of tobacco, and indian corn, are precarious, and often destroyed by gusts, droughts, and other casualties. But in such cases if the master cannot be trusted for necessaries, till he makes another crop, himself, family, slaves, and stocks, must be in miserable and starving circumstances.Footnote 118
The Board of Trade disallowed the 1748 statute without an explanation, and despite the costs of the entail, the unique legal status of slaves as both real and chattel property remained in place until after Independence.
B. Georgia: The Colonial Frontier
Georgia provides a direct illustration of the impact of entailing property on credit markets. Georgia was exceptional in that was created for the purpose of serving as a military buffer to protect South Carolina from attack by Native Americans. The founders of the colony, the Trustees of Georgia, operating out of London, offered between 50 and 500 acres of land to anyone who would immigrate and accept their terms of ownership.Footnote 119 They required mandatory entail: all land was to pass from eldest male heir to eldest male heir. Allowing free alienation, they feared, would lead to land concentration that would reduce the buffering effect of a widely inhabited countryside. The Trustees also prohibited Georgia residents from owning or leasing slaves, because they felt that the number of slaves in South Carolina was a military threat and feared the threat would worsen if slaves were imported into Georgia.Footnote 120
Immigrants to Georgia, however, found mandatory entail incompatible with economic survival because it prevented them from using land as collateral for credit. In 1738, the residents of Savannah petitioned the Trustees to provide a remedy for what they described as “our present Misfortunes, and this deplorable State of the Colony.”Footnote 121 The central problem was that “Merchants in general, especially of England, not being willing to supply the Settlers with Goods upon Commission, because no Person here can make them any Security of their Lands or Improvements.”Footnote 122 They asked that the “Constitution” of Georgia be revised to deal with two problems:
I. The Want of a free Title or Fee-simple to our Lands; which, if granted, would both occasion great Numbers of new Settlers to come amongst us, and likewise encourage those who remain here, chearfully to proceed in making further Improvements, as well to retrieve their sunk Fortunes, as to make Provision for their Posterity.
II. The Want of the Use of Negroes with proper Limitations; which if granted, would both induce great Numbers of White People to come here, and also render us capable to subsist ourselves by raising Provisions upon our Lands, until we could make some Produce fit for Export … .Footnote 123
The Trustees in London were not responsive to these requests. The Trustees’ response to the Savannah petition described “they who wanted a Power to mortgage or alien” their lands as merely “gratify[ing] the greedy and ambitious Views of a few Negro Merchants.”Footnote 124 Moreover, they stated that “by giving them a Power to alien their Lands, the Colony would soon be too like its Neighbors, void of White Inhabitants, filled with Blacks, and reduced to be the precarious Property of a Few, equally exposed to domestick Treachery, and foreign Invasion.”Footnote 125 Therefore, in Georgia, the entail was a device not to maintain an aristocracy, but to prevent the importation of slaves and to forestall land concentration, for military reasons.
After the Revolution, however, the demands of Georgia citizens for greater liquidity through abolition of the entail prevailed. The Georgia Constitution of 1777 provides that “Estates shall not be entailed … .”Footnote 126 Georgia is an example of a frontier society in the early stages of development, where residents expressed a desire to leverage their property to the maximum extent in order to import slaves and to accelerate the process of cultivation. By raising the abolition of the entail to constitutional status, the political leaders favored expanding credit conditions generally over recognizing the interest of individual property owners in having a means by which they could lower their exposure to economic risk. In historical accounts, Georgia's constitutional provision is often listed along with other state legislation in discussions of republican ideology.
VI. Conclusion
Understanding the role of the fee tail in shielding land and slaves from creditors should inform the interpretation of Founding Era property reforms, both in states that abolished the fee tail and in states that retained, but modified, its operation. As described, the dominant historical account has followed Jefferson's Autobiography, which emphasizes that abolishing the entail was “deemed essential to a well-ordered republic.”Footnote 127 Therefore, in 1924, for example, the Columbia University historian Allan Nevins noted that republicanism was so strong in Virginia that: “The Assembly contained many representatives of the landed aristocracy, bound by ties with each other and by self-interest to protect the existing order; as matters stood, the great landowners were bulwarked against even creditors who wanted the entailed land to satisfy debts. Yet the bill passed promptly, as if on the flood-tide of democracy.”Footnote 128
Until recently, however, historical scholarship was heavily influenced by work by C. Ray Keim, presented first in a 1926 PhD dissertation and published in 1968. Amidst a rich description of the practice of entailing property, Keim documented that only a small percentage of Virginia wills and deeds created estates in fee tail.Footnote 129 Keim concluded that entail “was not a general custom” among small property holders, and that only in the Tidewater region did the practice have a “somewhat general use even among the great planter class.”Footnote 130 Keim's essay led to a consensus view that the abolition of the entail was highly important symbolically, but did not radically alter existing land practices. Following Keim, scholars such as Stanley N. Katz emphasized the symbolism of abolishing the entail, often grouping it with the abolition of primogeniture. According to Katz, “History showed that primogeniture and entail were feudal remains that had no place in a republican scheme of things and that represented the dead hand of an aristocractic corporatism they rejected.”Footnote 131 Similarly, to Gregory Alexander, primogeniture and the entail “were the principal symbols of the social hierarchy that American republicans associated with ‘feudal’ corruptions of the common law of property… . The release of land from these feudal constraints meant a release of individuals from dependency and inequality.”Footnote 132
The principal work questioning the dominant consensus was that of Bernard Bailyn who, entirely consistent with this article, emphasized the incompatibility of entail and slavery as an explanation for why the entail was not likely to have been used in the slave South. According to Bailyn, in colonial Virginia, “[a] mobile labor force free from legal entanglements and a rapid turnover of lands, not a permanent hereditary estate, were prerequisites of family prosperity.”Footnote 133 Bailyn's interpretation relied on primary materials from Virginia as well as Keim's data that only a small percentage of land was entailed.
In 1998, however, Holly Brewer revealed that Keim's work suffered from a serious methodological flaw: Keim overlooked that, once land was entailed, there was no need to “re-entail” the land in subsequent conveyances. Keim thus vastly undercounted the amount of land that was held in fee tail in Virginia.Footnote 134 In Brewer's account, given the much more significant empirical use of the practice, Jefferson's evaluation of the property reforms of the Revolutionary period as important hallmarks of republicanism and as bulwarks against aristocratic rule appear profoundly confirmed.Footnote 135 Brewer notes that the greater quantity of fee tail land calls Bailyn's thesis into question.Footnote 136
This article suggests that Jefferson's autobiography of 1821 has carried too much weight in historiography. Deeper analysis of the entail reveals that its role as a wealth-shielding device complicates the antiaristocratic account, even if Brewer's calculations relating to the quantity of entailed land are correct. As mentioned, Jefferson's 1776 statute describes as one reason for its enactment that the expenses of removing entails on estates “of small value, was burthensome to the publick, and also to individuals.”Footnote 137 In Georgia, colonists opposed the form of entail law in operation because it prevented land consolidation that some residents desired. Empirical studies have shown that after the Revolution, in the Southern states where the entail was abolished, the profitability of slavery led large slave owners to outbid non-slave owners in land markets, which led to substantial inequality and, according to the economic historian David Weiman, to “‘pre-emptive’ displacement [of yeoman households] to more marginal soils.”Footnote 138 The current historical literature has overlooked that the abolition of the entail might have accelerated the land consolidation observed after the American Revolution.
The wealth-shielding property of the entail is equally important to our understanding of Anglo-American property law. It is highly important to recognize that the Anglo-American body of property law contains within it an important example of wealth shielding that originated centuries ago. The fee tail enabled individuals to select particular assets to be immune from creditors’ claims, despite the additional costs to credit markets of a lack of transparency. The fact the entail took the form of a family-based inheritance doctrine is in keeping with the kinship-based property systems of many of the world's societies today. Abolishing the entail in the South subjected all landowners, small and large, male and female, to greater financial risk. The connection to the economy rooted in slave labor is highly conspicuous, however absent from the writings promoting republicanism.
APPENDIX
Acts of the Virginia Legislature Removing Entails
Name, Chapter number (Year), volume number of Hening, Statutes at Large: page number
1711
1. Francis Yeates, Ch. 4 (1711), 4:28, land to land and slaves
2. John and Frances Custis, Ch. 5 (1711), 4:29, mill, land, and slaves to cash (to pay debts) (fee tail female)
1712
3. William Manley, Ch. 7 (1712), 4:36, land to land
1713
4. William Smith, Ch. 12 (1713), 4:50, land to land
1718
5. Michael Megginson, Ch. 4 (1718), 4:75, land to land
1720
6. Abraham Cocke, Ch. 18 (1720), 4:95, land to land
1722
7. John Blincoe, Ch. 15 (1722), 4:116, land to land
8. Francis Smith, Ch. 16 (1722), 4:117, land to land
1723
9. Sarah Brechin, Ch. 14 (1723), 4:142, land to slaves (fee tail female)
10. Robert Subblefield, Ch. 15 (1723), 4:142, land to land
1726
11. Richard Randolph, Ch. 14 (1726), 4:181, land to land and slaves
1727
12. William Farrar and Thomas Farrar, Ch. 22 (1727), 4: 240, land to land and slaves
1730
13. William Randolph, Ch. 25 (1730), 4:307, land to land and slaves
14. William Ligon, Ch. 26 (1730), 4:307, land to land and slaves
15. Henry Cary, Ch. 27 (1730), 4:307, land to land
16. George Turberville, Ch. 28 (1730), 4:307, land to land
17. John Douglass, Ch. 29 (1730), 4:308, land to land and slaves
1732
18. Thomas Turner, Ch. 24 (1732), 4: 377, land to land and slaves
19. John Allen, Ch. 26 (1732), 4:377, land to land and a mill
20. Charles Barham, Ch. 27 (1732), 4:377, land to land
21. Gertrude Harmanson, Ch. 28 (1732), 4:377, land to land and slaves (fee tail female?)
22. George Weedon, Ch. 29 (1732), 4:377-78, land to land
23. Richard Coleman, Wiliam Thornton, Francis Thornton, Ch. 30 (1732) 4:378, land to land and slaves
24. William and Mary Homes, Ch. 31 (1732), 4:378, land to land and slaves (fee tail female)
25. William Meriwether, Ch. 32 (1732), 4:378, land to land and slaves
26. Thomas Bray, Ch. 33 (1732), 4:378, land to slaves
27. John Taylor, Ch. 34 (1732), 4:378, land to land and slaves
28. William and Mary Lowry, Ch. 35 (1732), 4:379, land to land (fee tail female)
1734
29. Robert Bernard, Charles Tomkies, Ch. 27 (1734), 4:457, land to land
30. Anne Freeman and Elizabeth Shackleford, Ch. 29 (1734), 4:461, land to land and slaves (fee tail female)
1736
31. Lewis Burwell, Ch. 21 (1736), 4:534, land to land and slaves
1738
32. Joshua Kendall, Ch. 24 (1738), 5:83, land to slaves
33. Ralph Wormeley, Ch. 25 (1738), 5:85, land to cash (to pay sisters’ portions)
1740
34. Beverley and Elizabeth Randolph, Ch. 13 (1740), 5:111 (fee tail female)
35. Nicholas Johnson, Ch. 14 (1740) 5:114, land to land and slaves
1742
36. William Banks, Ch. 32 (1742) 5:214, land to land
1744
37. Mann Page, Ch. 37 (1744) 5:277, land for cash to pay debts and slaves
38. John Belfield, Ch. 38 (1744) 5: 285, land to land
39. West family, Ch. 42 (1744) 5:297, land to land
40. William Banks, Ch. 45 (1744) 5:306, land to slaves
1745
41. George Eskridge, Ch. 28 (1745) 5:392, land for cash (to pay debts)
42. Thomas Todd, Ch. 29 (1745) 5:395, land to slaves
43. Henry Willis, Ch. 30 (1745) 5:397, land to slaves
1752
44. Rebecca Edloe, wife of William Clinch, Ch. 44 (1752) 6:297, land to land and slaves (fee tail female)
45. Thomas Meriwether, Ch. 46 (1752) 6: 300, land to land
46. Benjamin Harrison and John New, Ch. 47 (1752) 6:303, land to land, slaves and water grist-mill
47. Arthur Smith, Ch. 48 (1752) 6:308, land to land and water grist-mill
48. David Garland, Ch. 49 (1752) 6:311, land to land and slaves
49. Lewis and Frances Burwell, Henry and Anne Washington, Elizabeth Thacker, and Sarah Thacker Ch. 50 (1752) 6:314, settlement between joint owners (fee tail female, four sisters)
50. Wilhelmina and Thomas Chamberlayne, Chapter 52 (1752) 6:319, land to land (fee tail female)
51. Unity Dandridge, and Nathaniel West Dandridge Ch. 53 (1752) 6:321, land to land and slaves (fee tail female-Unity now a widow)
1753
52. Gerard Alexander, Ch. 24 (1753) 6:399, land to land and slaves
53. Robert and Mary Chew, Ch. 25 (1753) 6:402, land to land and slaves (fee tail female)
54. John Armistead, Ch. 26 (1753) 6:405, land to cash (to pay sisters’ portions)
55. Lawrence Smith, Ch. 27 (1753) 6:407, land to land and slaves
56. Philip and Elizabeth Johnson, William and Judith Armistead, Ch. 28 (1753) 6:412, settlement under will (fee tail female)
1754
57. Nathaniel West Dandridge, Ch. 2 (1754) 6:428, land to land and slaves
58. Anna Armistead and John Armistead, Ch. 5 (1754) 6:443, land for cash (to pay debts) (fee tail female-complicated)
59. Thompson Swann, Ch. 6 (1754) 6:446, land to land and slaves
60. Joseph Bridger, Ch. 7 (1754) 6:448, land to slaves
1757
61. Armistead Churchill, Ch. 29 (1757) 7:157, land to land and cash
62. Thomas Johnson, Ch. 30 (1757) 7:159, land to land
1759
63. Tunstal Banks, Ch. 17 (1759) 7:293, land to land and slaves
64. Lewis and Frances Burwell Ch. 6 (1759) 7:343, land to land (fee tail female)
1760
65. Charles Lewis, Ch. 4 (1760) 7:377, land to land
1761
66. Archibald Cary, Ch. 27 (1761) 7:440, land to land
67. Carter Henry Harrison, Ch. 30 (1761) 7:455, land to land
68. Executors of Gawin Corbin, Ch. 31 (1761) 7:458, land and slaves to land and cash
69. Robert Carter, Ch. 9 (1761) 7:478, land to land
70. Mann Page, Ch. 10 (1761) 7:480, land to land and slaves
71. William Todd, Ch. 11 (1761) 7:483, land to slaves
72. John West, Ch. 13 (1761) 7:488, land to slaves
1762
73. William Seward, Ch. 7 (1762) 7:514, land to land and slaves
74. Ralph Wormeley, Ch. 41 (1762) 7:628, land to land
75. James Scott, Ch. 42 (1762) 7:630, land to land and slaves
76. Henry Scarburgh, Ch. 43 (1762) 7:634, land to slaves
77. James and Frances Hubard, Ch. 44 (1762) 7:636, land to land and slaves (fee tail female)
1764
78. Charles Carter, Ch. 11 (1764) 8:25, land to land
79. Executors of John Spotswood, Ch. 12 (1764) 8:27, land for cash
80. William Cary, Ch. 13 (1764) 8:34, land to land and slaves
a. Repeated at 8:61
81. John and Milred Syme, Ch. 12 (1764) 8:54, land to land and slaves (fee tail female, although Mildred had just died)
82. Richard Todd, Ch. 13 (1764) 8:57, land to land and slaves
83. Robert Lewis, Ch. 14 (1764) 8:59, land to land
84. George Heale, Ch. 16 (1764) 8:63, slaves to land
85. Nathaniel Harrison, Ch. 17 (1764) 8:66, land to slaves
1765
86. Rice Jones, Ch. 40 (1765) 8:159, land to slaves
87. Thomas Mann Randolph, Ch. 41 (1765) 8:161, land to land
88. John Gregg, Ch. 42 (1765) 8:163, land to land and slaves
89. Harry Beverley, Ch. 43 (1765) 8:166, land to slaves
90. James and Frances Hubard, Ch. 44 (1765) 8:168 repetition of earlier act but earlier one prevents James from selling lots by writ of quod ad damnum, this one does not, land to land and slaves (fee tail female)
91. Nathaniel Harrison, Ch. 48 (1765) 8:174, land to slaves
1766
92. Charles Carter, Ch. 22 (1766) 8:218, land for cash
93. Nathaniel Littleton Savage, Ch. 23 (1766) 8:222, land to land and slaves
94. Nathaniel West and Dorothea Dandridge (as well as Philip Whitehead Claibourne and Elizabeth) Ch. 24 (1766) 8:224, land to slaves (fee tail female)
a. Modified in Nathaniel West and Dorothea Dandridge, Ch. 65 (1772) 8:638
95. Robert Beverley, Ch. 25 (1766) 8:227, land to land
96. Ralph Wormeley, (1766) 8:230, land to land
97. Lewellin Jones, Ch. 53 (1766) 8:276, land to land and slaves
98. Kendall Lee, Ch. 54 (1766) 8:278, land to land and slaves
99. Harry Beverley, Ch. 55 (1766) 8:280, land to slaves
100. John Aylett, Ch. 56 (1766) 8:283, land to slaves
101. Thomas Moore, Ch. 57 (1766) 8:285, land to land and slaves
102. William Starke, Ch. 59 (1766) 8:289, land to land and slaves
103. Anne Hall, Ch. 60 (1766) 8:291, land to land and slaves (fee tail female)
1768
104. James Roscow, Ch. 6 (1768) 8:301, land to slaves
1769
105. John and Landon Carter, Ch. 68 (1769) 8:436, land for cash to keep slaves
106. Thomas Fisher, Ch. 70 (1769) 8:440, land to slaves
107. David Garland, Ch. 71 (1769) 8:442, land to slaves
108. John Page, Ch. 72 (1769) 8:445, land and slaves to land
109. Robert Burwell, Ch. 73 (1769) 8:448, land to land
110. Francis Eppes, Ch. 74 (1769) 8:450, land to land
111. John Wormeley, Ch. 75 (1769) 8:452, land to land and slaves
112. Richard Johnson, Ch. 77 (1769) 8:455, land to land and slaves
113. Armistead Lightfoot, Ch. 78 (1769) 8:457, land to slaves
114. Charles Carter, Ch. 80 (1769) 8:464, land to land
115. Nathaniel Lyttleton Savage, Ch. 81 (1769) 8:468, land to land
116. David and Sarah Meade, Ch. 82 (1769) 8:470, land to land (fee tail female)
117. George Brooke, Ch. 83 (1769) 8:474, land to land
118. Bernard Moore, Ch. 84 (1769) 8:476, land to land and slaves
119. Charles and John Lewis, Ch. 85 (1769) 8:478, land to land
120. James Burwell, Ch. 86 (1769) 8:481, land to land and slaves
121. Sarah and John Rootes, Ch. 87 (1769) 8:483, land to slaves (fee tail female)
122. William and John Armistead, Ch. 88 (1769) 8:487, land for cash (to pay debts)
1772
123. Philip Ludwell Grymes, Ch. 61 (1772) 8:630, land for cash settling estate
124. William Todd, Ch. 62 (1772) 8:631, land to slaves
125. John and Margaret Hancock, Ch. 63 (1772) 8:635, land to land and slaves (fee tail female)
126. Ralph Wormeley, Ch. 64 (1772) 8:637, land for provision for younger children
127. Nathaniel West and Dorothea Dandridge, Ch. 65 (1772) 8:638, land to slaves (fee tail female)
128. William and Elizabeth Booth, Ch. 66 (1772) 8:640, land to land (fee tail female)
129. James Blackwell, Ch. 67 (1772) 8:641, land to land and slaves
130. Colwell and Mary Pettypool, Ch. 78 (1772) 8:643, land to land and slaves (fee tail female)
131. Lewis Burwell, Ch. 12 (1772) 8:663, land to land
1773
132. John Tazewell, Ch. 13 (1773) 8:665, land to slaves
133. Bowles Armistead, Ch. 14 (1773) 8:667, land for cash (to pay debts)
