Jason Schachter Legal History Workshop November 24, 2015

Dear Members of the Legal History Workshop:

I look forward to discussing this topic on Tuesday and hearing all of your thoughts. The analysis and conclusions in this prospectus are all preliminary—more research has to be done. Included at the end of this prospectus are a variety of primary source excerpts related to the topic at hand. Some of these excerpts are more readable and/or interesting than others, so I suggest that you give them each at least quick look. See you all on Tuesday.

Paper Prospectus for “Docking Entails through Legislation: A Study of Virginia and North Carolina

Factual Background

In some of the American colonies, property holders could hold real property in “fee tail,”

which was also known as “entailed” property. Entailed property could not be freely alienated, but

would instead be inherited through subsequent generations by a designated class of heirs for an

indefinite period of time. In the colonies that recognized entails, any property owner could grant,

often in his or her will, real property in “fee tail.” While there were slight differences in

formulations, often, a grant of real property to “A and the heirs of his body” created a fee tail in

that property.1 This is to be compared with a grant of land in “fee simple,” which was feely

alienable and did not include language concerning the body (i.e. “to A and his heirs”).

Practically, the current possessor of entailed land, the tenant-in-possession, only held it as a life

estate. Upon his or her death, his or her heir would become the new tenant-in-possession. After

the new tenant-in-possession’s death, the new heir would then inherit the property, and so on….

As long as the entail was not broken, the tenant-in-possession did not have the power to change

who would inherit the property—the particular type of heir designated at the time of the creation

of the entail would inherit. The dead hand of one’s ancestor could therefore control how a

particular piece of entailed property descended through the years.

There were many reasons why tenants-in-possession would want to remove the entail from their property. These include, wanting to: borrow against it (entailed land was useless to creditors

1 See John F. Hart, “A Less Proportion of Idle Proprietors”: Madison, Property Rights, and the Abolition of the Fee Tail. 58 WASH. & LEE L. REV. 167, 171 (2001).

who could not take absolute possession of it), sell it, break it up, or grant it in whole or in part to others, often younger children other than the heir. Consequently, several of the American colonies followed England’s lead in adopting various common law methods to break, or defeat, entails. These common law methods involved the use of various legal fictions that had been perfected in England over the years. Their use in the American colonies meant that a tenant-in- possession of an entailed property could defeat the entail at will if he or she had the money to hire a good lawyer to do so through court proceedings. Once broken, the entailed land would be converted to one held in fee simple, which would be freely alienable.2

However, in two of the American colonies, a different system for breaking entails

developed. While common law methods of breaking the entail had existed in Virginia in the 17th

century, these methods were outlawed by the colonial government in the 18th century. In 1705,

the colonial government in Virginia passed a law providing that the only method of breaking, or

docking, an entail was through a special act of the Virginia legislature.3 Like other acts passed by

the Virginia legislature, this act would then have to be approved by the Crown. In 1727, the

Virginia legislature explicitly permitted the entailing of slaves to tracts of land.4 In 1734,

Virginia gave an alternative, easier avenue for docking the entail of land worth less than two

hundred pounds, although a special act of the legislature remained the only method of docking

larger entails.5 In 1776, the Virginia legislature passed a law which abolished all entails,

2 Id., at 172. 3 Act of 1705, Ch. XXI, in The Statues at Large; Being a Collection of All the Laws of Virginia, Vol. III. (William Waller Hening ed.). 4 Act of 1727, Id. at Ch. X, Vol. IV. However, the legislature made an exception whereby entailed slaves, unlike entailed land, could be taken by creditors for debts. Id. While the Virginia legislature attempted to convert all entailed slaves into personal property in 1748, this Act was disallowed by the Crown. Claire Priest, The End of Entail: Information, Institutions, and Slavery in the American Revolutionary Period, 33 Law & Hist. Rev. 277, 308- 09 (2015). 5 Act of 1734, Id. at Ch. VI, Vol. IV.

converting all interests in fee tail into interests in fee simple.6 North Carolina replicated the

substance of most of Virginia’s laws regarding entail in the 18th century.7

Historiography

The historiography of the study of use of entails in the American colonies is itself a

fascinating object of study. For most of the 20th century, the most widely accepted view on the

existence of entails in Virginia, which was extended by some to include all of the American

colonies, was formulated by Ray Keim. Keim studied a sample of wills and deeds in a sampling

of counties in Virginia in an effort to determine whether entails were widely used in the colony.8

Based on his study of the wills, deeds, and the legislative record, Keim concluded that entails were an insignificant factor in Virginia because they were only present in a small proportion of the wills that he examined. He therefore concluded that the abolition of entail in Virginia in 1776 was important solely for its anti-aristocratic symbolism, rather than any practical significance.

Keim’s conclusions were subsequently cited widely for the proposition that entails were not a significant factor in Virginia, or the American colonies for that matter.9

However, in 1997, Holly Brewer wrote an article highly critical of Keim’s conclusions. Re- examining Keim’s data, Brewer concluded that Keim had grossly misinterpreted his data.10 After

reanalyzing the data, Brewer estimated that around three-quarters of Virginian land was entailed

in 1776. Other scholars built off of Brewer’s conclusions, for instance, by noting that many of

6 Act of 1776, Id. at Ch. XXVI, Vol. IX. 7 Act of 1749, Chapter IV, in Colonial and State Records of North Carolina, Vol. 23; Act of 1784, Id. at Chapter XXII, Vol. 24. 8 See C. Ray Keim, Primogeniture and Entail In Colonial Virginia, 24 THE WILLIAM AND MARY QUARTERLY, 545 (1968). 9 See, e.g., Holly Brewer, Entailing Aristocracy in Colonial Virginia: “Ancient Feudal Restraints” and Revolutionary Reform, 54 THE WILLIAM AND MARY QUARTERLY, 307, 309-11 (1997) (noting the dominant influence of Keim’s influence on the scholarship). 10 Id. While Brewer delves deeply into mathematics and statistics, her essential point is that Keim significantly underestimated the importance of the fact that once property was entailed in a single will, there was no need to “re- entail” such property in subsequent wills. It remained entailed. Therefore, Keim’s methodology of noting what percentage of wills contain language creating an entail, and noting that it was a relatively small percentage, led to false conclusions.

the Virginia legislators themselves were intimately involved in the entail process.11 Clearly, an

acceptance of Brewer’s conclusions drastically changes the conception of the role of entail in

Colonial Virginia, and possibly by extension, the role of entail in other colonies. The role of entail in colonies other than Virginia has been the subject of far less study.

Among recent scholarship concerning entails, Claire Priest’s is perhaps the most interesting. 12 Priest has very recently reexamined the Virginia records and concluded that the economics of entail played a far more significant role in its abolition than has been

conventionally understood; the traditional view is that entails were abolished out of a republican

or anti-aristocratic sentiment. Priest argues that the entail played a major role in allowing

property owners to shield certain land from creditors with entails, or alternatively dock the

entails in order to free up that land for credit. She also argues that the relationship between

slavery and entails has been significantly overlooked. Priest emphasizes the incompatibility of entails with the economics of slavery and cites this incompatibility as one of the main reasons that entail was abolished in in Virginia, North Carolina, and other slave states.

Proposal / Preliminary Thesis

I would like to make two interrelated arguments in this paper, the second partially building off of the first. The first portion of the paper would involve a discussion of the legislative process for the docking of entails in North Carolina and Virginia in the 18th century. My interest in this

particular area is that, while the American colonies are conventionally thought of as less “feudal”

than England during this time, the process for breaking entails was arguably stricter in these two

colonies because it could only be accomplished through an act of the legislature, rather than

through the courts. Furthermore, since an act of the legislature had to be approved by the Crown,

11 See Hart, at 178-84. 12 Claire Priest, The End of Entail: Information, Institutions, and Slavery in the American Revolutionary Period, 33 LAW & HIST. REV. 277 (2015).

the Crown was able to maintain a tighter reign over the docking process than if common law

avenues for breaking the entail had been available. I would like to begin by discussing a few

particular examples in the North Carolina legislative record involving the docking of entails.

While there are far fewer examples of North Carolina acts docking entails (as compared to

Virginia), they have been the study of much less scholarship than their Virginia counterparts.13

One case in particular has a rich set of facts (involving the sale of land to Blake Baker—a few

relevant documents are included later). For a portion of my paper, I intend to engage in an

extended case study of this case, believing that it does a good job illustrating the potential pitfalls

that could arise during each step of the legislative process for docking entails.

I would like to use this case, as well discuss some other North Carolina and Virginia cases,

to support the viewpoint that the colonial legislatures, and especially the Crown, implemented,

and at least somewhat enforced, a number of safeguards before any act docking entails would be

affirmed.14 These involved giving sufficient notice to parties who had an interest in the property and requiring the affirmation, or at least no objection, from these parties. Furthermore, the colonial legislatures and the Crown typically required that, in order to dock the entail from one tract of land, a different unencumbered tract of equal or greater value must in turn be entailed in its place. These requirements had the effect of helping to prevent anyone who had a property interest in the entailed property, typically the heir, from losing their value. I ultimately intend to

13 I have not actually encountered any discussion in my research so far of any of the private acts docking entails in North Carolina. However, I leave open the possibility that I may encounter such with further research. John V. Orth has written on fee tail in North Carolina, but his focus is elsewhere. See, e.g., John v. Orth, After the Revolution: “Reform” of the Law of Inheritance, 10 LAW AND HISTORY REVIEW 33 (1992). Other scholars have mentioned North Carolina insofar to note that there public acts regarded entail has copied Virginia. At the very least, there has not been a similar focus on the private acts docking entails in the North Carolina colony as there has been on their Virginian counterparts. 14 An examination of these North Carolina cases would add support to recent scholarship that concluded that the legislative process had some teeth to it based solely on an analysis of Virginian legislative records (given that the legislative processes between the two colonies were nearly identical). Compare, e.g. Hart, at 177 (arguing that fee tail restrictions in 18th century Virginia had “considerably more bite in Virginia than in England) with Robert E. and B. Katherine Brown, Virginia 1705-1786: Democracy or Aristocracy, 84 (Michigan State University Press, 1964) (arguing that it was easier to dock entails in 18th century Virginia as compared to England).

conclude that the colonial government and the Crown only permitted entails to be docked within

certain clearly established bounds.

The second component of my paper would begin with a discussion of the politics, theories,

and stated justifications for the abolition of the entail in Virginia (1776) and North Carolina

(1784). I then intend to offer an additional possible explanation for, or at least an unintended

effect of, the decision to abolish entails in these states. The argument is that the abolition of

entails had the effect, whether intentional or not, of eliminating possible legal arguments in

opposition to the confiscation of certain Loyalist property that would have otherwise been

entailed if not for the abolition of entail in these states. My inquiry into this particular avenue of

research is recent, and so more research is necessary to flesh out these thoughts.15 Nevertheless, the following is my preliminary assessment.

The essential point in this argument would be that the confiscation of entailed property, as opposed to property held in fee simple, had the potential to give rise to a particular type of legal challenge. As Blackstone has noted, there was a long history of legal debate in England concerning the consequence of the Crown confiscating property of a tenant-in-possession of an entailed property for treason. The issue was whether the tenant-in-possession would simply be surrendering his or her own life estate in the property to the Crown, or whether the entire line of descendants who would possess the property in fee tail would also lose all of their rights to the property. According to Blackstone, the English courts ultimately concluded the latter based on the implementation of English statute.16 However, this outcome did not necessarily mean that the

matter was settled in the American colonies. Indeed, English common law was not necessarily to

15 I have not yet encountered scholarship explicitly linking the abolishment of entail with the confiscation of Loyalist property during and after the Revolutionary War. However, it is possible that I may find scholarship making this connection as I continue my research in this area. 16 William Blackstone, Commentaries on the Law of England, Vol. II, Ch. 7 (1765-1769).

be extended wholeheartedly into the colonies, especially when that common law was based on an

English statute involving treason to the monarch.

By looking at what happened to confiscated Loyalist property in the states that still

permitted entail, one can observe the legal issues that the Virginian and North Carolinian state

governments avoided by abolishing it when they did.17 Based on preliminary research, the

Supreme Court in at least one state, New Jersey, while noting that English judges had concluded otherwise, refused to disinherit the heirs of an entailed property that the state had confiscated and sold due to the tenant-in-possession’s treason (he was a Loyalist during the Revolutionary

War).18 Instead, despite having to engage in a very narrow reading of the state statute to do so,

the court determined that the state’s confiscation of the property for treason did not break the

entail. The state, and the buyer who subsequently purchased the confiscated property from the

state, only gained the property as a life estate—the property would revert to the original owner’s

heir upon his death.

Therefore, building off the conclusion for the first half of my paper, I would argue that the

legislative process of docking entails, as it existed in Virginia and North Carolina, would not

have been understood to be a method by which the state could break the entail of Loyalist

property. The bounds by which the docking of entails was permitted, which involved the assent

of all parties with an interest in the property, were too rigid for this purpose. Furthermore, courts

may have been very reluctant to adopt any statutory construction that would permit the state to

confiscate and sell an estate tail for treason—under the view that doing so unfairly deprives the

17 Since Virginia and North Carolina did abolish entail, there is likely little case law in those states involving cases where entailed Loyalist property was confiscated. However, the experience of other states that still permitted entail at the time of these confiscations can give an indication of what might have happened in Virginia and North Carolina if they had not abolished entail. 18 Den v. Clark & Zilcar, 1 N.J.L. 391 (N.J. 1795).

8 heirs of their property interests in fee tail. The abolition of the entail, whether intentionally or not, had the effect of eliminating such concerns.

Primary Sources / Methodology

The main primary sources for this paper will likely be the 18th century legislative records in

North Carolina and Virginia. Compilations of both have been made and recently digitized. These will provide the bulk of the information concerning the legislative process for docking entails in those states. These records will be supplemented by primary source accounts of individuals who served in the legislatures during this time, or were otherwise involved in this process. These include the recollections of Thomas Jefferson, James Madison, Edmund Pendleton, Landon

Carter, and others. Information regarding the potential role of entails in the confiscation of

Loyalist property will focus on relevant court cases at the time, but will also involve an examination of various other primary sources that may shed light on this issue.

Selection of Primary Sources

An Act to dock the entail of certain lands therein mentioned, vesting the fee simple thereof in Blake Baker, and for settling other lands, in lieu thereof to the same uses (1761) [North Carolina].

[This excerpt is a bit dense. If you choose not to read it, its substance is referenced in the next excerpt which is a bit more readable].

I. Whereas, Col. Barnaby McKinney, late of this province, deceased, being in his life time, seized in his demesne, as of fee of and into, certain tracts of land lying and being in Halifax county (formerly Edgecomb), and being so seized, the said Barnaby McKinney did, by his last Will and testament, in writing, bearing date the thirteenth day of August in the year of our Lord one thousand seven hundred and thirty seven, devised to his son Richard M'Kinney, in fee tail (together with other lands), that tract of land, whereon the said Barnaby M'Kinney then lived; bounded as followeth: Beginning at the upper end of the Cypress Gut on Morattuck River, at a place called the old Milldam, thence by the windings of the said Gut, to the great ditch; thence along the said ditch to the corner thereof at the road; and thence by the courses of the Cypress Gut to where William Brown's head line crosses the same; then by Brown's headline to his corner near the head of Merry branch; then by Brown's lower line, to a Maple on Morattock river: as also, Two hundred acres of land, purchased of Col. William Maule, adjoining William Brown's lower line; and all the remainder of the said Barnaby M'Kinney's lands on the south side of Morattock river, not before devised; and if the said son Richard should die without lawful heir or issue, then the plantation whereon the said Barnaby M'Kinney then lived, with three hundred acres of land adjoining should descend to his son John M'Kinney in fee-tail; and all other the lands before devised to the said Richard M'Kinney, should go to the two daughters of the said Barnaby M'Kinney, to-wit: Patience Lane an Mourning Pope, and the heirs of their two bodies lawfully begotten, and to their heirs forever, equally to be divided between them, and soon after died; and the said Richard M'Kinney, after the death of the said testator, in consequence of the said devise, became seized and posessed of the lands aforesaid, and so died seized thereof without lawful issue; by means whereof John Lane, and Henry Pope, the lawful heirs of Patience Lane and Mourning Pope, became seized as heirs at law to the said Patience and Mourning of the lands in the aforesaid device mentioned; except the plantation, and three hundred acres of land limited as aforesaid to the said John M'Kinney. And the said John Lane, Heir at Law to the said Patience Lane, who, by the will of the said testator, in default of lawful issue of the said Richard M'Kinney, was intituled to one half of the said lands so limited to the said Patience and Mourning, entered, and was seized, and possessed thereof; and apprehending that he had a fee simple estate therein, agreed to sell the same to Col. Joseph Lane, for the consideration of Four Hundred Pounds, and executed a lease and release to the said Col. Joseph Lane, for his part or share of the lands so limited to the said Patience and Mourning; and the said Joseph Lane apprehending that he had (after the conveyance by the said John Lane executed) an absolute estate, in fee simple, to the said lands so conveyed by the said John Lane, agreed to sell the same to Blake Baker, for the consideration of five hundred pounds, and executed deeds of conveyance for the same to the said Blake Baker. And also, whereas, the said John Lane is seized, in fee- simple, of, and into, one certain tract or parcel of land, containing by estimation, six hundred and

eighty three acres, lying and being in the parish of Edgecomb, in the County of Halifax, lately purchased by him of Joseph Lane by

deed of Feossment; and also, whereas, it will be greatly to the advantage of the eldest son of the said John Lane, to dock the entail of the said lands so limited to the said Patience, his mother, whereby the said John may be enabled to provide for his younger children, and to settle the other parcel of land purchased of Joseph Lane as aforesaid, whereof he is seized in fee-simple, to the same uses; and forasmuch as notice has been published three Sundays successively in the several churches and chapels in the said parish of Edgecomb, in the county of Halifax, that application would be made to this present General Assembly, to dock the intail of the said dividend of land so limited to the said Patience, upon settling the other lands to the same uses, pursuant to your Majesty's instructions:

II. May it therefore please your most Excellent Majesty, at the humble suit of the said John Lane, and the said Blake Baker that it may be enacted, and be it Enacted, by the Governor, Council, and Assembly, and by the authority of the same, that the said land so limited, as aforesaid to the said Patience Lane, so as aforesaid agreed to be sold to the said Joseph Lane and by him to the said Blake Baker, be, and are hereby vested in the said Blake Baker, his heirs and assigns, in fee- simple, to the only proper use and behoof of the said Blake Baker, his heirs and assigns forever. And that the other parcel of land herein before mentioned to be purchased by the said John Lane, lying and being in the county of Halifax, be, and is hereby vested in the said John Lane, in the same manner as by the said will directed for the other lands so limited to the said Patience; and the same shall remain, go, and descend, to all and every such person and persons, and for such estate or estates and in such manner and form, as the said lands so limited to the said Patience would have remained, gone and descended, by virtue of any limitations in the will of the said Barnaby M'Kinney before mentioned, as if this act had never been made; saving to the King's most excellent Majesty, his heirs and successors, and to all and every person and persons, bodies politick and corporate, their respective heirs and successors, other than the persons claiming under the will aforesaid of the said Barnaby M'Kinney, all such right, title, interest, claim, and demand, as they every or any of them should or might claim if this Act had never been made.

III. And also, whereas, the said Barnaby M'Kinney, by his last will and testament as aforesaid, devised to his daughter Christian M'Kinney, and the heirs of her body lawfully begotten, and their heirs forever, three hundred and twenty acres of land more or less, being the plantation leased to Dr. James Thompson, known by the name of Walnut Fork, and two hundred and fifty acres more or less; including the plantation where James Denson lived; and all the lands between the Cypress Gut and Isaac Reck's line, and the Black pond; and the said Christian intermarried with William Hurst, late of Halifax county, by whom she had issue, Mary, her only child and heir; and sometime after the death of the said Barnaby M'Kinney the said Christian departed this life, leaving issue the said Mary, who is entitled to the aforesaid two tracts or parcels of land so devised to the said Christian her mother; and apprehending that the said land had a fee-simple estate therein, and in order to purchase other land and slaves of greater value than the aforesaid two tracts of land to advance her fortune and interest, agreed to sell the same to Blake Baker, for the consideration of five hundred pounds. and whereas, the said Mary is seized in fee-simple of and into one tract of land, containing by estimation, two hundred and seventy-five acres, lying and being in the county of Halifax, conveyed to William Hurst, father of the said Mary, by

Benjamin Sherrod and Patience his wife, and by deed of gift, conveyed to the said Mary by the said William Hurst, her father; and also two hundred acres, lying and being in Northampton county, purchased of Paul Patrick, and Agnis his wife, by the aforesaid William Hurst, and by him conveyed to the said Mary by deed of gift: And whereas, it would be greatly to the advantage of the said Mary to dock the entail of the said two tracts of land so devised to the said Christian her mother; and to settle the other parcels of land whereof the said Mary deceased, is seized in fee-simple being of greater value to the same uses; And forasmuch as notice has been published three Sundays successively, at the churches and chapels in the parish of Edgecomb, in the county of Halifax, that application would be made to this present General Assembly to dock the entail of the aforesaid two tracts or parcels of land so devised to the said Christian, upon settling the other lands of greater value to the same uses, pursuant to your Majesty's instructions:

IV. May it therefore please your most excellent Majesty, at the humble suit of the aforesaid Mary Hurst and Blake Baker, that it may be enacted, and be it Enacted, by the Governor, Council and Assembly, and by the Authority of the same, that the two tracts or parcels of land so devised as aforesaid to the said Christian, so as aforesaid agreed to be sold to the said Blake Baker, be, and are hereby vested in the said Blake Baker, his heirs and assigns, in fee-simple, to the only proper use and behoof of the said Blake Baker, his heirs and assigns forever; and that the aforesaid two hundred acres of land herein before mentioned, lying and being in Northampton county, conveyed to the said Mary by deed of Gift as aforesaid, be, and is hereby vested in the said Mary Hurst, in the same manner as is by the said will directed for the other land so devised to the said Christian, in lieu and stead of the aforesaid three hundred and twenty acres of land so devised as aforesaid, and that the aforesaid two hundred and seventy-five acres before mentioned, lying and being in the county of Halifax, conveyed to the aforesaid Mary, by William Hurst, her father as aforesaid, be, and is hereby vested in the said Mary Hurst, in the same manner as is by the said Will directed for the other lands so devised to the said Christian, in lieu and stead of the aforesaid two hundred and fifty acres of land so devised as aforesaid, commonly called the Callodonia plantation; and the aforesaid two tracts or parcels of land so conveyed as aforesaid to the said Mary, shall remain, go, and descend to all and every such person and persons and for such estate and estates and in such manner and form as the aforesaid two tracts or parcels of land so devised to the said Christian severally would have remained, gone and descended by virtue of any devise or limitation in the will of the said Barnaby M'Kinney before mentioned as if this act had never been made, saving to the King's most excellent Majesty, his heirs and successors, and to all and every other person or persons, bodies politick and corporate, their respective heirs and successors, other than the persons claiming under the will, of the said Barnaby M'Kinney as aforesaid; or otherwise, all such rights, title, interest, claim and demand, as they or any of them should or might claim if this act had never been made. Provided always, that this Act or anything herein contained shall not take effect or be in force, until his Majesty's approbation be had to the same.

Read three times and ratified in open Assembly, the 23d day of April, 1761.

Source: Acts of the North Carolina General Assembly, 1761, Vol. 25, Ch. XV, in Colonial and State Records of North Carolina, available at http://docsouth.unc.edu/csr/index.html/document/csr25-0044

Memorial of Couchet Jouvencel for Blake Baker concerning his purchage of land in North Carolina (1762)

[Apparently responding to an objection regarding the above Act…]

To the Right Honourable the Lords Commissioners for Trade and Plantation

The Humble Memorial of Cuchet Jouvencal in behalf of Blake Baker

Sheweth

That Mary Hurst and John Lane severally sold sundry Tracts of Land lying and being in the County of Halifax in North Carolina to Blake Baker Esqr, in order to enable them to support and educate their children, to purchase Slaves (without which Lands are of little Value) and to put Stock upon such other Lands as belonged to them

That the said Mary Hurst and John Lane (each of them respectively) petitioned the Governor Council and Assembly in North Carolina to pass an Act to confirm the sale of the said Lands, and that other Lands should be settled in lieu thereof to the same Uses.

That after the said Petitions were referred to the said Governor Council and Assembly the said Mary Hurst and John Lane (agreeable to the course prescribed by the Laws of said Colony) gave notice in writing in all the Churches & Chapels in the Parish of Edgcombe or County of Halifax setting forth their intention of applying to the said Governor, Council and Assembly for an Act to Authorize them in the Disposal of the Lands therein mentioned that if any Person had just Cause to object to the same they might be at Liberty to offer their Reasons against passing the said Act:

That the said Advertisements were for three Sundays successively read in all the said Churches or Chapels or Places of Public worship, and that during the time the said Petitions were under the consideration of the said Governor, Council and Assembly there was not the least objection made to the said Mary Hurst or to the said John Lane's having an Act passed to authorize them in the disposal of the Lands they were entitled to under the will of Barnaby McKinnie late of said Province.

The Complainants being silent during the time that Mary Hurst and John Lane applied to the Assembly for an Act to authorize them in the Disposal of the said Lands, and also till the said Blake Baker paid his money for the purchase of the same, gives a very unfavourable Opinion of his Conduct and his afterwards applying to the said John Lane, to join with him in opposing the Royal Assent being given to the said Act of Assembly, plainly shews that he acted from bad Principles, and that if he had any Right or Title to the said Lands in remainder he would have

13 applied to the Assembly before the passing of the said Act. About a year after passing the said Act of Assembly, the said Claimant got some Neighbours of his who were then in the Commission of the Peace to View Lands which he told them were assigned as an Equivalent for the Lands Mary Hurst and John Lane sold to the said Blake Baker and upon his information, they gave it as their Opinion that the Lands shewed to them were not equal in Value to those that were sold to the said Baker, and that those in remainder would be much injured thereby, but as this was a private Transaction, without Notice and contrary to the Rules prescribed by Law, and by the usuage of the Colony, as conceived, nothing of this nature ought to be permitted to be read in Evidence, and that as the whole of the Complainant's proceeding, seems to Arise from motives of resentment, that he ought previous to his being heard on this Subject to shew how he derives any Title or Interest in the said Lands, under the Will of the said Barnaby McKinnie.

The respective Governments in the Colonies, have always discouraged the Intail of Lands which were not improved as the Quit rents and Provincial Texes could not be properly collected from such Lands, and also that the Owners of such Lands could enjoy little or no benefit from them, and in North Carolina there is a Law, entitled an Act for cutting or Docking the Intail of small Estates, which empowers such Persons as have small Estates in Fee Tail, to obtain a Writt from the Secretary's office, directed to the Sheriff of the County, where the Lands lye, commanding him to summons twelve men to enquire the Value of the Land, and if it should be found not to exceed £50 Sterl. in value, then the Intail may be barred by pursuing the method therein prescribed.

In England by Law there is a power of Docking the Intail of Lands, but in Carolina there is not any Law (except as above) for Docking of Intails, but in all Cases of this nature, application must be made to the Governor, Council and Assembly.

Therefore your Memorialist (in behalf of the said Blake Baker) humbly prays your Lordships will be pleased to take the Premises into Consideration, that the said Complainant be required to lay before your Lordships the Papers or Records upon which he grounds His Title, under the Will of the said Barnaby McKinnie, and if he fails in this Particular, that his complaint may be dismissed. That as the steps the said Complainant took with respect to the valuation of the Lands which were assigned by the said Mary Hurst and John Lane as an Equivalent for the Lands sold to the said Blake Baker, were irregular, without Notice, and contrary to the Usuage of the Colony, your Memorialist prays, that what was done therein may not be permitted to be read in Evidence, and as the said Mary Hurst and John Lane, and also the said Blake Baker, have in all Respects acted agreable to the Customs and Usuage of the said Colony, in cases of the like nature, and that the said Governor, Council and Assembly have acted upon full Information, and agreeable to the Rules of Justice, and the Usuage of the said Colony, your Memorialist furthur prays that your Lordships will be pleased to recommend it to His Majesty to Grant the Royal Assent to the said Act of Assembly.

And your Memorialist will ever pray etc.

Source: B. P. R. O. North Carolina. B. T. Vol. 14. E. 56, in Colonial and State Records of North Carolina, Vol. VI, available at http://docsouth.unc.edu/csr/index.html/document/csr06-0223.

1776 Act Abolishing Entail in Virginia

CHAP. XXVI.

An Act declaring tenants of lands or slaves in taille to hold the same in fee simple.

I. WHEREAS the perpetuation of property in certain families, by means of gifts made to them in fee taille, is contrary to good policy, tends to deceive fair traders, who give a credit on the visible possession of such estates, 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; and whereas the former method of docking such estates taille by special act of assembly, formed for every particular case, employed very much of the time of the legislature, and the same, as well as the method of defeating such estates, when of small value, was burthensome to the publick, and also to individuals:

II. Be it therefore enacted by the General Assembly of the commonwealth of Virginia, and it is hereby enacted by the authority of the same, That any person who now hath, or hereafter may have, any estate in fee taille, general or special, in any lands or slaves in possession, or in the use or trust of any lands or slaves in possession, or who now is or hereafter may be entitled to any such estate taille in reversion or remainder, after the determination of any estate for life or lives, or of any lesser estate, whether such estate taille hath been or shall be created by deed, will, act of assembly, or by any other ways or means, shall from henceforth, or from the commencement of such estate taille, stand ipso facto seized, possessed, or entitled of, in, or to such lands or slaves, or sue in lands or slaves, so held or to be held as aforesaid, in possession, reversion, or remainder, in full and absolute fee simple, in like manner as if such deed, will, act of assembly, or other instrument, had conveyed the same to him in fee simple; any words, limitations, or conditions, in the said deed, will, act of assembly, or other instrument, to the contrary notwithstanding.

III. Saving to all and every person and persons, bodies politick and corporate, other than the issue in taille, and those in reversion and remainder, all such right, title, interest, and estate, claim, and demand, as they, every, or any of them, could or might claim if this act had never been made; and saving also to such issue in taille, and to those in reversion and remainder, any right or title which they may have acquired by their own contract for good and valuable consideration actually and bona fide paid or performed. Source: Act of 1776, Ch. XXVI, in The Statues at Large; Being a Collection of All the Laws of Virgina, Vol. IX (ed. William Waller Hening).

Excerpt from Thomas Jefferson’s Autobiography

“On the 12th. [1776] I obtained leave to bring in a bill declaring tenants in tail to hold their lands in fee simple. In the earlier times of the colony when lands were to be obtained for little or nothing, some provident individuals procured large grants, and, desirous of founding great families for themselves, settled them on their descendants in fee-tail. The transmission of this property from generation to generation in the same name raised up a distinct set of families who, being privileged by law in the perpetuation of their wealth were thus formed into a Patrician order, distinguished by the splendor and luxury of their establishments. From this order too the king habitually selected his Counsellors of State, the hope of which distinction devoted the whole corps to the interests & will of the crown. To annul this privilege, and instead of an aristocracy of wealth, of more harm and danger, than benefit, to society, to make an opening for the aristocracy of virtue and talent, which nature has wisely provided for the direction of the interests of society, & scattered with equal hand through all it’s conditions, was deemed essential to a well ordered republic. To effect it no violence was necessary, no deprivation of natural right, but rather an enlargement of it by a repeal of the law. For this would authorize the present holder to divide the property among his children equally, as his affections were divided; and would place them, by natural generation on the level of their fellow citizens. But this repeal was strongly opposed by Mr. Pendleton, who was zealously attached to ancient establishments; and who, taken all in all, was the ablest man in debate I have ever met with. He had not indeed the poetical fancy of Mr. Henry, his sublime imagination, his lofty and overwhelming diction; but he was cool, smooth and persuasive; his language flowing, chaste & embellished, his conceptions quick, acute and full of resource; never vanquished; for if he lost the main battle, he returned upon you, and regained so much of it as to make it a drawn one, by dexterous manœuvres, skirmishes in detail, and the recovery of small advantages which, little singly, were important altogether. You never knew when you were clear of him, but were harassed by his perseverance until the patience was worn down of all who had less of it than himself. Add to this that he was one of the most virtuous & benevolent of men, the kindest friend, the most amiable & pleasant of companions, which ensured a favorable reception to whatever came from him. Finding that the general principles of entails could not be maintained, he took his stand on an amendment which he proposed, instead of an absolute abolition, to permit the tenant in tail to convey in fee simple, if he chose it: and he was within a few votes of saving so much of the old law. But the bill passed finally for entire abolition.”

Source: Thomas Jefferson, Autobiography (1821), available at http://libertyonline.hypermall.com/Jefferson/Autobiography.html

Excerpt from the Diary of Landon Carter, Undated Entry, 1776

“Those who fancy entails of any injury to a republic must be monsters of a[n] Agrarian cast, and dare not shew themselves in any field of fair discussion for every tenent intail now made a holder in the fee simple must by his large Possessions, which the argument supposes Produce the same evils and effect the same influence against a Commonwealth as in a cheat, if his heart is bent on such Villany unless he is also obliged to divide his possessions during his life and against his will.

“Some rather Considerably than Judicially fancy Moses’ injunction against the alienating the inheritances of the fathers, related only to the tribes, that they should not all be evicted out of the tribes. But to be sure they never considered the reported Case of Nabeth; for his vineyard must be in the same tribe with Ahab’s Kitching garden [illegible] against alienation, etc., must be indiscriminately from Man to man whether in or out of the tribe (is) where ever the inheritances were; and not located in its meaning to the tribes alone especially as we find it in the case of 2d wives, when we expressly find the inheritances forbid to be alienated from the eldest Son; and indeed this Law prevailed even in the days of Abraham and In particular in the days of Isaac, the Patriarch, which has almost made some commentators inquire it to be one of the laws of Nature or at least inspired into the minds of People before they were established into Government.

“No reader, Let not the disobedience of your heir include you to conclude it proceeds from an expectation of independency, and therefore Punish him for what you can but guess at. But, if that is his motive to disobedience, leave him to the judge of every unseen cause, and let him punish him according to his command with Promise. For the law as Judge, though it may work a condemnation of those who made it, can never exculpate you for transgressions against your conscience which must be often too evident to be denied. Otherwise the question may be frequently asked how come you by those entailed Possessions. Those who seek their own revenge in such cases of this imaginary cause of disobedience Can be but despots in their hearts, and Cowards to boot. The latter because they fear the Judgments of men, and the former in seeking their own justice, as every Tyrant will do, through an arbitrary Principle.

“Besides do we not often see, that mankind fall into immoralities without the devils ever holding the apple of temptation to them [to be added to the arguments used against the presuming that expectati(on) of an estate often corrupts the morals of Youth which is advanced as a reason why the continuance of Estates in families and entails is contrary to good Policy]? Why then should we not only strain but even force reason out of it[s] channel of good sence in order to support at best but a possible Position?”

Source: Landon Carter, The Diary of Colonel Landon Carter of Sabine Hall, 1752-1778, Vol. II, 1068-69 (ed. Jack P. Greene, Virginia Historical Society, 1987).

1784 Act Abolishing Entail in North Carolina

“V. And whereas 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, Be it therefore Enacted by the authority aforesaid, That from and after the ratification of this Act any person seized or possessed of an estate in general or special tail, whether by purchase or descent, shall be held and deemed to be seized and posessed of the same in fee simple, fully and absolutely without any condition or limitation whatsoever to him, his heirs and assigns forever, and shall have full power and authority to sell or divide the same as he shall think proper, and such estate shall descend under the same rules as other estates in fee simple; and all sales and conveyances made bonafide, and for valuable consideration, since the first day of January, in the year of our Lord

17 one thousand seven hundred and seventy-seven, by any tenant in tail, in actual possession of any real estate where such estate hath been conveyed in fee simple, shall be good and effectual in law to bar any tenant or tenants in tail, and tenants in remainder of and from all claim and claims, action and actions, and right of entry whatsoever, of in and to such entailed estate, against any purchaser, his heirs or assigns, now in actual possession of such estate, in the same manner as if such tenant in tail had possessed the same in fee simple.”

Source: Act of 1784, Chapter XXII, in Colonial and State Records of North Carolina, Vol. 24.

New Jersey Supreme Court Opinion - Den v. Clark & Zilcar [1795]

[Considering whether an estate held in fee tail could be forfeited for treason under state statute.]

[408] KINSEY, C. J.

(After reciting the circumstances of the case as detailed in the special verdict.) Before I come to the consideration of the important questions arising in this cause, it may be proper to mention one circumstance, which may, perhaps, prevent future trouble and future disappointment. At the trial of this cause the plaintiff offered to prove, by parol testimony, that at the sale of this property, Clark, the defendant and the purchaser, inquired what estate the commissioners designed to sell; the answer was, an estate for the life of John Hinchman, (the third,) and no more. That the lands were really sold for no more than the life of John Hinchman (the third). The court, however, overruled the testimony, which we are now of opinion was erroneous. We think the plaintiff should have been permitted to produce this testimony to the jury; and that if he could legally prove these facts, no title in fee could be made under a sale of a life estate only, nor should a party be permitted to avail himself of any ambiguity of language, and hold an estate so different from that which he himself intended to purchase, or the commissioners designed to sell.

The principal question argued upon this verdict has been, what estate was forfeited by the judgment on this inquisition? The plaintiff has contended that John Hinchman (the third), being tenant in tail, was incapable of forfeiting anything more than his life estate in the premises. The defendant, on the other hand, maintains that he forfeited all the estate tail created by the will of John (the first); that is, as long as any issue of the body of John (the second) exists.

As to the statutes of 25 Edw. III., 26 Hen. VIII. and 33 Hen. VIII., the second of which forfeits estates tail where a man is convicted of treason by the course of the common law alone, they do not appear to me to bear upon the present question further than to show under what words and under what circumstances estates tail have been held to be forfeited in England. They may operate as precedents in construction in analogous cases, but as statutes they have no obligatory power upon the court in this cause, and afford no rule for its determination.

As to the first of these statutes, that of 25 Edw. III., it is remarked by Lord Coke that its principal benefit was, that it fixed what should be considered as amounting to treason. 2 Inst. 2. With respect to forfeitures, it does no more than declare generally that "the forfeiture of the escheats pertaineth to our lord, the king, as well of the lands and tenements holden of others as of

18 himself." From the statute de donis in 1285, until the 26 Hen. VIII, in 1534, estates tail were never held forfeitable for treason. When that statute was passed, the judges, however unwillingly, were compelled to adopt the construction that estates in tail were forfeited by treason. And if it be considered that the statute in question forfeits all lands in which the offender had any estates of inheritance; that estates in fee-simple were subjected to forfeiture before the making of the statute; and that estates tail are estates of inheritance, the absolute necessity of this construction seems apparent. Upon any other construction the statute would have had no effect at all; and it would have been to declare it useless and invalid, to say that estates in tail were not included.

The case of Brown v. Wait has been cited, and much relied on. Upon examination, this case seems to have been decided nearly on the same grounds as those which I have stated, as compelling the construction that was given to the statute of 26 Hen. VIII. There was evidently a strong repugnance in the court to consider the estate tail of Sir John Danvers to be forfeited, but they were compelled to adopt this construction, or the statute would, as Ventris, in his report of the case, says, "have signified nothing at all." The judges said that the statute took notice that Sir John was dead--of course he could not have an estate for life, subject to forfeiture; but there is certainly ground to infer from the language of the court, that if he had been alive, and could have forfeited an estate for life, so that the statute might have had some object, and its provisions been not absolutely nugatory, the determination would have been different.

From these circumstances and observations the following inferences may be drawn: That the judges on statutes so highly penal, have not been readily induced to pronounce estates tail forfeited for treason, even when those judges have been wholly in the power of the government, and were strongly interested to give judgments so consonant to the wishes of the crown, general words have not been deemed sufficient in any case, except where the construction was necessary to prevent the statute from being wholly inoperative.

This case, however, depends neither upon the English statutes, nor upon the construction which judges have passed upon them, but on an act of assembly of our own state, and upon the design and intention of the legislature, either clearly expressed, or unavoidably and necessarily implied- -an intention to be collected from the whole statute, taken in a connected point of view, and considered in all its parts, not by remarking on general expressions, without considering them as constituting only a part of an entire law. Our object, therefore, is to examine this act of assembly, and from its various parts to deduce as far, and with as much precision as possible, the design and intentions of those by whom it was framed.

The law in question is inaccurately drawn, and at the same time is highly penal; so much so, indeed, as to be incapable of being supported upon any principles of law or justice. To prove this it is only necessary to recall to mind the character of the contest in which we were engaged, and the changes that had occurred since its commencement. The legislature go back to the origin of the war, to a period when congress, and almost all their constituents, considered themselves as British subjects, professing allegiance to the king, to whom they uniformly said, "govern, but do not oppress us;" the legislature go back to this period when, according to the law of nature and of nations, every individual had a perfect right to choose his party and join which side he pleased, and pronounce a sentence of severe and indiscriminate condemnation upon all who joined the

19 armies of the British, either here or elsewhere, and subjecting their property to a total and absolute forfeiture; such a law should, therefore, be construed strictly, and certainly should never be extended further than the words express or unavoidably imply.

In the first section of the act the legislature begin with general words, "all and singular the lands, tenements, and hereditaments," expressions evidently rather to be considered as descriptive of the things intended to be forfeited, than of the interest in them. These words are certainly not more comprehensive than those used in the statute of 25 Edw. III., which were never construed to include an estate tail. But, admitting that if they stood alone, they might be presumed to comprehend estates tail, the words immediately succeeding, in the same sentence, "held in fee or for term of life," restrict the preceding general words, and limit their extension to lands held in fee or for life. As these words stand connected together, no court of justice could have supposed that the legislature designed to forfeit an estate tail. Arguments, therefore, drawn from single, unconnected words and expressions, of which we have had too many on this occasion, have no weight with me.

The general words which follow, viz., "All the estates real, of what nature or kind soever, belonging to the offender," are equally ineffectual to forfeit an estate tail. These general words ought not, according to the received rules of construction, to be construed to extend to anything of a higher nature than the next antecedent, which is an estate for life. The doctrine that has been cited from Bacon is unquestionable, that general words are not to be extended to give a penalty, but they are to save one.

In many cases, and to many purposes, the estate of the tenant in tail is no more than an estate for life. The act of assembly which makes lands chattels for the payment of debts, says that the hereditaments, real estates, houses, and lands of the debtor, shall be chattels for the payment of debts, and yet an estate tail has never been held liable to be sold further than for the life of the debtor; and, in the opinion, I should presume of every man, a creditor comes forward in a manner equally entitled to the favor of the law, and better founded in equity, and may with more justice and propriety claim a liberal extension of the words of the law towards him than a state, when demanding a forfeiture.

It may be objected that tenant in tail is, in fact, as much an owner of the estate as tenant in fee, because he may, at his pleasure, dock the entail, and vest himself with the absolute fee. In my opinion, it would be a sufficient answer to all this to say, it is true he might have done all this, and might have acquired a more unlimited right over his property, but he did not; and we are considering, not what estate he might, under certain circumstances, have acquired, but what he actually and in fact possessed. With equal reason, it might be contended that, whenever a man has a right of action for lands, or right of entry, either of which, if properly pursued, would reduce that estate into possession, these should be forfeited for treason, and that the state should not suffer because he would not do what he might have done. But the determinations have been otherwise: neither are forfeited. Judges have not been fond of extending these statutes further than they were compelled to, and these interests were not embraced by the words of the law.

There is nothing in any part of this act which shows an intention to forfeit any estate but what the offender had the right of selling and disposing of absolutely.

When he has that absolute power, there seems more reason to forfeit the estate, though his children should suffer in consequence; but where a man is seized in tail by the gift of his ancestor, he cannot sell or dispose of it, nor can he do any act while the entail continues to deprive his children of it, according to the directions of the ancestor. Why, then, or upon what principle, can he, by any act of his, forfeit or convey this property to the state, not only to his prejudice, but to the prejudice of others who do not claim from him, but derive their right from the same fountain whence his title originated, from the deed of their common ancestor? We think, therefore, that, to declare that the inheritance in this case was forfeited, would be giving to this act a construction far more extensive than we are warranted in doing by the words of it.

What confirms me in this opinion, that the legislature never intended to forfeit an estate tail for a longer period than the life of the tenant committing the offence, is the language employed in a subsequent part of the law. The tenth section directs all forfeited estates to be sold by the commissioners in their own name by a deed poll, and adds that such deed shall convey all the right and title which the offender had at the time of the commission of his crime. It then proceeds to state what they mean by the estate of the offender, and says the purchaser shall have, hold, and enjoy the bargained premises as fully as the offender held, or might, or ought to hold the same. Clark bought this right and no more. It may be proper also to remark in this place, that the estate which he purchased was the estate which John Hinchman (the third) had at the time the offence was committed, and not the estate, which, had he continued seized for several years longer, he would have been entitled to under an act of assembly, passed at this subsequent period, enlarging estates tail.

In acts of a nature similar to this which we have been considering, and under which this forfeiture was had, where a person may be convicted of the crime imputed to him and forfeit his estate without notice, and without an opportunity of being heard in his defence, power puts on her severest countenance. If it be right in any case to extend punishment beyond the delinquent himself, and to deprive a child of that right which the laws of every civilized country have bestowed, and a power superior to all human institutions nature has sanctioned to succeed to the estate of his parent, surely it never should be done except where the law is clear and explicit. Where the law is in any degree ambiguous, and will admit of two constructions, one consonant to justice and humanity, the other contrary to these principles, it never should be done. Judges in the worst of times have been ashamed to do what we are called upon to do, unless where the construction was forced upon them, and was unavoidable. Let us not, in this government professedly founded upon the rights of human nature, begin our administration of justice with the doctrines and maxims which sometimes dishonored the character of the nation from which we and our institutions have alike sprung; and let us never, if it can be avoided, involve innocence in those punishments, and subject it to those penalties which should be reserved exclusively for the head of the guilty.

We are therefore unanimously in favor of entering judgment for the plaintiff.

Source: Den v. Clark & Zilcar, 1 N.J.L. 391 (N.J. 1795).