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Republicanism and Inheritance

Stanley N. Katz

• University of Chicago

“Republicanism and the Law of Inheritance in the American Revolutionary Era.” Michigan Law Review 76 (November 1977): 1–29.

A heated debate among historians concerns just how “revolutionary” was the American Revolution. One way of approaching this problem involves an “inquiry into the manner by which the institution of law affected the progress of the Revolution and was affected by it.” What happens to the laws of property is central to the study of any revolution, and, likewise, “the question of inheritance is central to the conception of property. Moreover, the law of inheritance represents a major intersection of public and private law.” Though not completely carried out, the rhetoric of the American revolutionaries “often seemed to call for thorough reform of the laws of inheritance.”

“Broadly speaking, two sorts of justification for the law of inheritance have been advanced: one is derived from the Romano-medieval natural rights tradition, the other emerged out of modern—that is, eighteenth-century—conceptions of popular sovereignty and legal positivism.” Hugo Grotius and John Locke stand as advocates of the natural law view, while William Blackstone is representative of the positivist outlook, both of which influenced events in the American colonies.

English inheritance laws as passed on to the Americans were still largely products of the feudal past. A man “could dispose more or less freely of his wherewithal by will, while at the same time the provision for intestate succession operated clearly in favor of his immediate family.” During the Revolution, the direction of inheritance reform was exemplified by the work of Thomas Jefferson in Virginia in striking down the vestiges of primogeniture and entail. “In fact, however, this legal and constitutional change was largely formal and symbolic, and it is not clear that either had restricted the distribution of property.”

Although largely formal in content, the rhetoric about inheritance was deeply embedded in republican ideology and the promotion of ideals of equality. Early in his career Jefferson, for example, believed “that the creation and maintenance of a republic required not just barriers to aristocratic accumulation of property, but also a scheme to distribute at least small parcels of land to all members of the society.”

A more radical thinker on the subject was Thomas Paine, whose writing on property in Rights of Man and Agrarian Justice form a link between both the American and French Revolutions. Paine argued for a progressive tax on property as a means of fragmenting large estates and promoting a wider distribution of ownership. Although in favor of such ideas in the 1790s, by the end of his life Jefferson had repudiated them. Even the French revolutionists did not, on the whole, attack the idea of private property, but they did try more extensive legislation to facilitate wider equality of ownership.

Thus the efforts of the Americans to reform inheritance laws to promote equality fell far short of the French experience. In America, “the fundamental notion was that, in a republic, careers should be based upon talent rather than status.” Most Americans apparently rejected the more extreme ideas of inheritance as once accepted by Jefferson and Paine.