Slavery and the Law of Successions
Born to a slave inheritance.
WILLIAM GOODELL, American Slave Code ( 1853)
"Every one is familiar," Goodell wrote, with the claim that one was said to have been '"born to a slave inheritance," or 'born a slaveholder.' These phrases occur in almost every plea for the blamelessness of the slaveholder, and for the 'innocency of the legal relation.'" Goodell was not impressed with the excuse. "This feature of the 'legal relation,'" he continued, "will be found . . . to embody one of the most foul and damning features of the whole system--the feature of self-perpetuity--of self-transmission to the future."1 He was correct to highlight succession law as it involved the validation and perpetuation of a social order. It also concerned moral choices (such as between the right of inheritance and the right of bequest).2 From the seventeenth century through the 1770s the rules of succession in the common law world were under increasing pressure to favor easier alienation of property. Nonetheless, the old rules were not completely rejected during that period. By the end of the eighteenth century and into the nineteenth they began to break down or were overthrown under the pressures of capitalism and a liberal property law.
By the end of the eighteenth century, for instance, the entail was abolished. But when entails fell into disfavor, new categories, or old ones used in new ways, were embraced by those who sought the same ends as had been achieved by the entail. Richard Ely noted that one purpose of the trust, an equitable category, was to function as a substitute for the old entail.3 The entail and its functional equivalents rested on a communitarian or familial notion of property rather than on a liberal conception of property.
During the nineteenth century a "liberal property law" occupied a powerful place in American legal thought. Gregory S. Alexander, a legal scholar, isolated two prominent characteristics of such a view of private property; "first, it promotes individual freedom of disposition as the basic mechanism of allocation. Second, it exhibits a strong preference for a fully consolidated form of property interest." A consolidation of property interests meant that those who favored a liberal property law tried to "concentrate in a single legal entity. . . . the relevant rights,