Bill to Enable Tenants in Fee Tail to Convey Their Lands in Fee Simple, [14 October 1776]
Bill to Enable Tenants in Fee Tail to Convey Their Lands in Fee Simple
[14 October 1776]
Whereas the perpetuation of property in certain families by means of gifts made to them in fee-tail 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 of1 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 tail by special act of assembly formed for every particular case employed very much of the time of the legislature,2 was burthensome to the public, and also to3 the individuals4 who made application for such acts:
Be it therefore enacted by5 the General Assembly of the Commonwealth of Virginia and it is hereby enacted by authority of the same that any person who now hath, or hereafter may have any estate in feetail 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 tail in reversion or remainder after the determination of any estate for life or lives or of any lesser estate, whether such estate tail hath been or shall be6 created by deed, will, act of assembly, or by any other ways or means, shall7 have full power to pass, convey, or assure in fee-simple or for any lesser estate the said lands or slaves or use in lands or slaves or such reversion or remainder therein, or any part or parcel thereof, to any person or persons whatsoever by deed or deeds of feoffment, gift, grant, exchange, partition, lease, release, bargain and sale, covenant to stand seised to uses, deed to lead uses, or by his last will and testament, or by any other mode or form of conveiance or assurance by which such lands or slaves, or use in lands or slaves, or such reversion or remainder therein might have been passed conveied or assured had the same been held in fee-simple by the person so passing, conveying or assuring the same: and such deed, will, or other conveiance shall be good and effectual to bar the issue in tail and those in remainder and reverter as to such estate or estates so passed, conveied, or assured by such deed will or other conveiance.
Provided nevertheless that such deed, will, or other conveiance shall be executed, acknoleged, or proved, and recorded in like manner as, and in all cases where, the same should have been done, had the person or persons so conveying or assuring held the said lands or slaves, or use in lands or slaves or such reversion or remainder therein in feesimple.
MS (Vi); in TJ’s hand, with amendments partly in TJ’s hand and partly in clerk’s hand (noted below). Docketed by TJ: “A Bill to enable tenants in fee-tail to convey their lands in fee-simple”; and by John Tazewell, clerk of the House of Delegates: “1776 Oct: 14. read 1st. Time. 15. read 2d. time & Committed to the Com: of the whole on Thursday. Oct: 17 Com: sat on this Bill & to resolve itself into a Com: thereon again tomorrow.—Oct: 18. Amendments agreed to & to be ingrossed & read a third time.”
On 12 Oct. leave was given TJ to bring in such a bill, and Bland, TJ, Starke, and Bullitt were appointed to a committee for the purpose; on 14 Oct. TJ introduced it; on 23 Oct. it was read a third time and passed, TJ carrying it to Senate; on 1 Nov. agreed to by Senate (, Oct. 1776, 1828 edn., p. 10, 12, 13, 17, 18, 23, 36).
This, one of the first bills passed by the legislature after the adoption of the Constitution, was also the first of TJ’s great reform bills which he hoped would destroy the foundations of an aristocracy of wealth and “make an opening for the aristocracy of virtue and talent”; in this he was strongly opposed by Pendleton, who offered and, according to TJ, almost succeeded in obtaining an amendment which would have given merely an option to the tenant in tail to convey in fee simple if he so chose to do ( i, 49–50). It is important to note that under Virginia law fee-tail applied to slaves annexed to land as well as land itself. (For a good discussion of the background of TJ’s Bill, see Malone, Jefferson, i, 251–7; see also Lingley, Transition in Virginia, p. 181.)
1. ii, 104, and ix, 226, omit “of,” which may indicate that Ford used another draft (see note 5).
2. Amendment in clerk’s hand: “Insert and the same as well as the Method of defeating such estates when of small value”; thus in ix, 226.
3. Amendment in clerk’s hand: “after the Word to leave out the”; thus in ix, 226.
4. Amendment in clerk’s hand: “Leave out from the Word Individuals to the end of the Clause”; thus in ix, 226.
5. ii, 104, indicates that the draft in TJ’s hand that he used was left blank at this point; in the present text, however, the words “the General Assembly of the Commonwealth of Virginia” were inserted in the handwriting of John Tazewell, clerk of the House. If Ford is correct in describing this as a blank space, he must have seen another copy; yet he includes the amendment in TJ’s hand noted below, and this would make it seem unlikely that there were two drafts in TJ’s hand left in the archives of the House and bearing the same amendment by TJ.
6. TJ originally wrote “shall have been” and then altered it to read “hath been or shall be.”
7. The following amendment in TJ’s hand changed the character of the Bill from a permissive power to convey in fee simple to an abolition of entails: “line 18. omit ‘have &c. to the end of the bill, and insert ‘from henceforth, or from the Commencement of such estate-tail, stand ipso facto seised, possessed, or entitled of, in, or to, such lands or slaves or use 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.
“Saving to all and every person and persons, bodies politic and corporate, other than the issue in tail 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 tail 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.” (This amendment was incorporated in the final Act; ix, 226–7. ii, 105, includes this amendment, and his text agrees so exactly with the above as to preclude the possibility of his having used another draft of the amendment, though there is a possibility that he may have seen another draft of the Bill itself.)
Both i, 105, and Malone, Jefferson, i, 254, say that TJ himself introduced this amendment; it is most likely that he did so, though the only evidence for it is the fact that it is in his handwriting; none of the amendments carries any indication of the identity of the proposer. It is important to note that TJ’s Bill as written merely empowers tenants in tail to convey in fee simple; Malone, Jefferson, i, 254, says, therefore, that TJ’s original proposal was “much like the one he afterwards attributed to Pendleton” and that, feeling out the opposition, TJ went on to amend his act so as to abolish entirely the system of entails. But, lacking TJ’s rough draft of the Bill, we cannot be certain that the text as here given was not written and introduced in order to meet Pendleton’s objections, since this Bill carries the same permissive power TJ later associated with Pendleton; certainly the Bill here presented is less in accord with TJ’s arguments in behalf of a purely allodial system of land tenure than it is with Pendleton’s views (see TJ-Pendleton correspondence May-Aug. 1776), and this amendment agrees both with the preamble to the Bill and with TJ’s known principles; Pendleton was not a member of the committee. It is worth noting, however, that in the original MS of his Autobiography TJ first wrote: “I obtained leave to bring in a bill enabling tenants in tail to convey their lands in fee simple.” This he altered to read: “… to bring in a bill declaring tenants in tail to hold their lands in fee simple”; the statement as first written is correct (, Oct. 1776, 1828 edn., p. 10), but TJ’s change in phrasing seems to be a significant indication of his original intent.