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Florida Bar Journal

Credit Nation: Property Laws and Institutions in Early America

By Claire Priest Book Reviews
Credit Nation: Property Laws and Institutions in Early America

Credit Nation book coverThe American system of property and credit is unique, and gives rise to many keystones of American life. The 30-year mortgage is one such keystone, with middle-class homeownership and the archetypical white picketed fence in the suburbs. Even at the founding, voting rights were only granted to property-owning white men — with the stated-idea that the property-owning part would ensure that voters were engaged in the political system. But what gave rise to this system of property ownership and debt? Claire Priest provides historical answers from the United States’ early years.

The essential difference in English and American real property law was that, while English law sought to maintain the large estates of the landed aristocracy, American land was in the hands of a wide group of men. This came about due to how property in the American colonies was doled out. The charters dictated getting as much productive property into the hands of as many productive people as possible. Sometimes, colonial land was even subject to lapse if it remained unplanted and unproductive three years after the royal grant.

What was also distinctive about American real property was its nearly liquid nature. Land was bought and sold in ways inconceivable in England. Although English law required a formal and public ceremony for the conveyance of land — the livery of seisin — once the ceremony was witnessed, the evidence of title remained private. Americans invented the concept of a publicly accessible title registry. This enabled local, republican credit markets to thrive, as creditors and debtors could verify the ownership of collateral. This was most important in the north, where land was often treated as a chattel, subject to levy just like personal property. Southern states maintained elements of English law that protected land from unsecured claims, to protect plantations from being broken up and sold piecemeal. Some states maintained the old English fee tail, to protect property from the claims of creditors in near perpetuity, a precursor of our trusts and homestead laws.

Although mercantilism at first favored this diffuse disbursement of property, eventually it would make harsh demands on the colonists. The Navigation Acts, Debt Recovery Act, and Stamp Act all led to conflict between the colonists and the empire, as the local system that the colonists enjoyed was centralized and subjected to direct British control. These conflicts, and the colonists’ willingness to fight for them, would play direct roles in causing the Revolution itself.

Priest’s look into the early years of American property law gives the reader a keener understanding of the system we have inherited from that generation: a system of easily conveyable, easily encumberable, real property. It also shows the importance for our American system of governance’s proper functioning that as many people as possible are engaged owners of property. This system gives a uniquely American twist to both property law and credit markets, and Priest’s book is a recommended introduction to that system’s historical context.

Ryan G. Tindall is a member of The Florida Bar.