'A Less Proportion of Idle Proprietors': Madison, Property Rights, and the Abolition of Fee Tail
29 Pages Posted: 8 Oct 2021
Date Written: Winter 2001
James Madison actively supported Virginia's abolition of fee tail in 1785, and he never receded from that position. Yet abolishing fee tail meant "extinguishing" property rights of "the issue in taille, and those in reversion and remainder" that the Virginia Assembly had long protected. Madison's endorsement of abolishing fee tail therefore provides an important counterexample to the view that Madison and the framers of the Constitution categorically favored protecting all rights of private property from legislative interference.
The reasons Madison gave for supporting abolition of fee tail, moreover, center on a perception of public harm that is quite at odds with libertarian concepts of property rights. Madison's support for abolishing fee tail was ultimately a matter of seeking to promote a better, more virtuous republic.
Substantial inherited wealth itself threatened trouble. Citizens of "the opulent class" were "idlers" whose example had tainted "the habits and manners of the people." Abolishing fee tail tenure offered the prospect of diminishing. "the opportunities" of inheriting "great wealth" and its "permanency, as part of instituting of"republican laws of descent and distribution." For Madison, the social objective of promoting "a greater simplicity of manners, consequently a less consumption of manufactured superfluities, and a less proportion of idle proprietors and domestics" justified extinguishing the existing private property rights of heirs in tail, reversioners, and remaindermen. Madison's position on fee tail thus fundamentally qualifies his famous articulation of the libertarian principle of individual autonomy, that "the first object of government" is to protect "different and unequal faculties of acquiring property."
Keywords: property, fee tail, republican government, legal history
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