Land Law

The agrarian character of colonial America gave the legal questions of ownership and alienation of land compelling economic significance. The Crown was in theory overlord of all lands in British North America, but it effectively disposed of this claim through the gift and sale of lands to proprietors and chartered corporations. These new claimants, in turn, redistributed the lands. "They were wrestling," Richard Hofstadter has written, "with the laws of wilderness economics."²⁹ Claims meant nothing if their holders could not induce settlers to work the land and to fortify vulnerable borders. The abundance of land facilitated these objectives by driving prices down within reach of men who could occupy, manage, and cultivate it.

The resulting law of real property was not uniform. It departed significantly from practices in England, and it varied from colony to colony depending on differing social and economic arrangements.

The communitarian values of the early settlers in New England, for example, figured prominently in the way they invoked their legal tradition. Land law there had the overriding purpose of maintaining a cohesive community free of the vestiges of feudalism. Under the town system in New England, legislatures allotted lands collectively to church congregations or groups of new settlers. This scheme of distribution initially provided for mutual ownership of common and pasture lands, but communitarianism in early New England quickly disappeared, being replaced by a system of individual landholding on a generally equal basis.

New Englanders expanded on their legal tradition by establishing the public recordation of land titles. A rudimentary system of land recording developed in sixteenth- century England, but the New England settlers expanded on it both quantitatively and qualitatively. The New England system required that the records of all land transactions be kept in one place, which was generally in a town clerk's office. Deeds recorded in this way took precedence over any other. Litigants indeed brought unregistered land claims as evidence, but the formally registered documents carried presumptive weight.

Recordation had three important objectives. First, it facilitated the transfer of land by eliminating uncertainty. Second, in the absence of a trained bar in the seventeenth century, it avoided the problem of an insufficient number of lawyers incapable of conveyancing land under the traditional common law methods. And, third, in New England it encouraged social harmony by quieting discord over land.

The New England recordation scheme became more rather than less important in the eighteenth century, when a trained bench and bar began to appear. As David Konig has shown, seventeenth-century New England town officials were notoriously careless in keeping track of land distributions. They often remedied their errors by granting disputing parties additional lands. This solution began to fail as town lands grew scarce as a result of increased population and aggressive accumulation by some residents. Previously informal disputes over land could only be resolved through formal appeal to the judicial process.

New Englanders initially favored simplified forms of land actions that involved only questions of trespass. In Connecticut, for example, the courts required that an action of "Surrendry of Seizin and Possession" be brought, but it was little more than

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a greatly modified form of the old common law action of ejectment stripped of the fictions. ³⁰ Throughout the colonies, the simpler forms of pleading land cases prevailed, although by the eighteenth century the presence of increased numbers of lawyers trained in the common law brought about the appearance of the fictitious John Doe and Richard Roe. These names were used by common law lawyers to obscure the identity of the real plaintiff and defendant and to rest the case on its technical merits. Despite this drift toward greater technicality, American land law never became as cumbersome as that in England.

Landholding in the middle colonies was more diverse. In New York the early Dutch patroon system resulted in a few huge grants of land. The pattern was similar in New Jersey. In both colonies, quit rents were enforced by landlords, often provoking riots and encouraging squatting. The upheaval was hardly surprising. A carpenter could earn approximately three shillings a day, roughly the cost of one acre of land. Only in Pennsylvania, Maryland, and Virginia were quit rents collected with anything resembling peaceful regularity.

In the Chesapeake and southern colonies, land was also widely available, but a commitment to staple agricultural production dictated a still different land law. The standard way of bringing labor to the land in these colonies was the headright system. Under it, a newcomer was given fifty acres of land in return for transporting himself unencumbered to the colony. The practice was transmuted into one that rewarded people for bringing others with them, such as indentured servants. The headright system was intended to promote compact settlement, but fraud and the vagaries of the market made it work in a nearly opposite fashion. Newcomers and planters often made double or triple claims for the same persons. Headrights became negotiable instruments: sea captains, for example, sold them to planters. A conscious need to extend landholdings in order to expand staple crops production drove this behavior. The resulting social order was more hierarchical than elsewhere in the colonies because land was less equally distributed. By the time planter capitalism had emerged triumphant in the early eighteenth century, the headright system was officially ended in Virginia, Maryland, and Georgia. These colonies sought to raise revenues by selling their remaining lands. Well-heeled planters and their offspring were active buyers, both for speculating and for increasing staple production.

The colonists broke dramatically from the English in their attitudes toward the succession of heirs. Primogeniture and entail were pervasive doctrines in English land law. The former provided that an estate went to the eldest male son in case the father should die intestate (without a will); the latter reinforced this practice by requiring that lands could not be distributed beyond male family members. The American colonists gave significantly less heed to these traditions in the English common law. To some extent the middle-class character of the colonies, in which land ownership was pervasive, contributed to this development. Furthermore, the seventeenth-century English middle class was accustomed to writing wills, and this experience was transferred to the American colonies. Like the quit rent, primogeniture and entail did not work well in the New World.

New England readily abandoned primogeniture. Every colony, except Rhode Island, formally ended it by the late seventeenth century. In its place, these colonies substituted an equal division of property to all sons upon the death of an intestate

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father, except that the eldest son received a double share. Partible inheritance permitted an ever-widening distribution of land to holders, but it also made certain that all of the sons in a family were provided the means to make their way in the world.

In the Chesapeake and southern colonies, as well as New York, primogeniture in cases of intestacy persisted down to the American Revolution. In practical terms, however, it had long since ceased to be of importance. The gentry class recognized that maintenance of their social positions depended not only on holding land but also ensuring its effective use after their death. Virginia planters, like middle-class New Englanders, were writers of wills. For example, George Washington's father, Augustine Washington, confronting unexpected death in 1743, passed his final hours anxiously dividing up his huge estate among his children and relatives. He devised a significant portion to his eldest son, Lawrence, but he distributed handsome parcels to others as well. Even if primogeniture had been adopted, as C. Ray Keim found for Virginia, "widespread land ownership would still have developed rapidly, since younger sons could accumulate holdings of hundreds of acres of land in a few years." ³¹

The practice of male entail persisted somewhat longer. Only two colonies, South Carolina and Delaware, had abolished entail before Thomas Jefferson in 1776 persuaded the Virginia Assembly to end it. Ten years after the Declaration of Independence all of the states, except Massachusetts and Rhode Island, had followed suit.

The experience with entail in Virginia offers a good example of the way in which land law acquired distinctively American qualities. It reveals, as well, that as land increasingly took on value for what it could produce rather than for the mere holding of it, the law kept step.

English parliamentary legislation had made it possible to devise lands through wills, through primogeniture, in case of intestacy, and through entail by conveyancing. The entailing of lands was recognized by parliamentary legislation in 1685; it also provided that entailed estates could be docked with relative ease through a process known as common recovery and fine. Virginia was typical of most colonies in following this transplanted legal tradition until the early eighteenth century. The House of Burgesses in 1705 made it nearly impossible to dock an entailed estate. The statute of that year required that an exception could be made to an estate already entailed only by special legislative act. Why Virginia took this action remains the subject of hot debate, although the action seems to have confirmed the aristocratic bias in early Virginia society at a time when the tobacco trade was under substantial pressure. The new legislation worked a hardship on small landholders as well as on large planters who owned small pieces of land that they wished to dispose of by sale. The Burgesses dealt with these annoyances in 1734 by allowing landholders to dock small pieces of property without legislative approval.

But the informal reaction was more telling than the legislative response. Parents, such as Augustine Washington, were careful to prepare detailed wills and, when time permitted, to pass parcels of land in fee simple to their children through deeds. Land descended in fee simple without restraint to any particular class of heirs, as contrasted to the fee (en)tail provisions. An estate in fee simple came as close as possible to absolute ownership. Moreover, the Virginia legislature increasingly broadened the exceptions made by special legislative act, although the wealth and social connections necessary to gain legislative attention limited the practice to large planters.

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Ultimately social and economic necessity prevailed. Entail was a burden that stalled economic growth. Ownership of several pieces of land was quite common in Virginia (and the Chesapeake and southern colonies generally), where securing the most productive lands was essential to the success of staple crops production. An eighteenth-century planter owned as many as ten tracts, varying in size from 100 to 500 acres. Those tracts held in fee tail could not be disposed of to buy other and potentially more productive tracts. Moreover, families of planters sought to escape the often exhausted soils of the eastern tidewater by moving to better land further west, and unencumbered holdings made such a move economically more feasible.

Virginia in 1776 ended entail. It did so, in the words of Thomas Jefferson, because the practice "is contrary to good policy, tends to deceive fair traders, . . . discourages the holder thereof from taking care and improving the same, and sometimes does injury to the morals of youth, by rendering them independent of and disobedient to their parents." ³²

The bias against development was quite strong in early American law. It flowed from the assumption that property owners had the right of absolute dominion over their land. An owner had the power to prevent any use of his neighbor's land that conflicted with his own quiet enjoyment. Sir William Blackstone, the greatest English commentator in eighteenth-century common law, asserted the principle forcefully in his Commentaries on the Laws of England, published between 1765 and 1769. Americans snapped up copies.

By the late eighteenth century, however, American experience and English common law principle had produced two contradictory theories of property rights. The first was explicitly against development. It limited property owners to what courts regarded as the natural uses of their land, and what was "natural" was usually equated with what was "agrarian." ³³ The second theory of property rights on which courts drew amounted to a rule that priority of development conferred a right to arrest a future conflicting use. This rule of priority use, or "first in time is first in right," was more compatible with economic development. But in actual operation the doctrine tended to limit economic growth, because it effectively gave the first person to establish a use on land an essential monopoly over it, barring others in the future from advancing from initial low-level development to something more sophisticated. Only in the nineteenth century, however, did the quest for development become sufficiently strong that the potential conflict between the doctrines of prior right and natural use receive close attention, and resolution, from the courts and legislators.

Date: 2015-01-29; view: 1229