Landowners and Slaveowners

Christopher Michael Curtis’ Jefferson’s Freedholders is on a topic that at first seems rather narrow: changes in property law in Virginia from the Revolution through the Civil War. Yet it has big implications for how we think about legal and constitutional change, the market revolution, support for slavery, and the relationship between those topics. The arc of Curtis’ narrative begins with real property as the focus of republican ideas at the time of Jefferson and ends with slavery as the focus of the Commonwealth at the time of the Civil War. This book, thus, deals with changes in property law and political ideology.

The starting point of Curtis’ story is a republican ideology that privileged widely dispersed holdings in real property. This political ideology correlated with a shift in how Virginians held their real property around the time of the Revolution. The shift was from holding real property under a feudal tenure to holding it as “allodial” property—that is, as property held directly by its owners from the government rather than as feudal property held under a lord. The feudal property regime might have involved some on-going payment obligations known as quit-rents. Such obligations implied dependence. Although other historians rarely pay attention to this shift, it is important to Curtis’ framing: “Grounding republican citizenship in the allodial freehold expressed a belief that the absolute ownership of a tangible piece of property would reconcile the indulgent characteristics of economic individualism with a vested social attachment to a particular local community and, accordingly, foster civic virtue through self-interest” (p. 8).

Thomas Jefferson wrote about the importance of the change from the feudal basis for property-holding before the Revolution to allodial property-holding after it, hence the title of the book. Those appeals to republican values of property ownership continued for decades. In the 1840s, for instance, Charles Faulkner envisioned a republican world of property owners free from debts on their slaves. Yet, despite the continuity of some rhetoric, there were changes afoot. Jefferson’s Freeholders traces the constitutional changes in Virginia in the nineteenth century that eliminated the real-property ownership requirement for voting in favor of allowing adult white males who had real property worth $25 (including an interest in someone else’s real property, as through a mortgage) to vote. This is critical in Curtis’ mind. “This fundamental reconception of the freehold thus facilitated significant reforms to the franchise and, by extension, recast fundamental beliefs about citizenship and self-government in Virginia’s republic” (p. 116). One of the key markers of the change from the Revolutionary-era to the Civil War was the 1849 Virginia Code, which effectively abolished the distinction between real and personal property by removing the requirement of ownership of real property for office-holding and made office-holding subject to election rather than to appointment. This sealed the shifting basis of political power from real estate to white male citizens and also marked the shift from property to democracy, as we used to call it. The changes in Virginia law recognized that people other than owners of real property should have a hand in government. Virginians shifted their political theory from Revolution through Civil War, from a government based on land ownership to a government based on free white male citizenship, at the same time protecting personal property—mainly enslaved humans.

Jefferson’s Freeholders also traces other changes in law, such as protections for real property and enslaved human property from creditors, as well as in a lot of other highly technical areas. For instance, there is an extended discussion of the litigation around the question of whether a man who has a beneficial interest in real property (that is, is the beneficiary of a trust that owns real property) is qualified to serve as a grand juror. At that point, Virginia limited grand jury service to owners of real property...