Tuesday, April 3, 2012

Property law in the shadow of emancipation

It's a real pleasure to guest blog here. As customary, my first post will advertise my current project, which you should download here.

I stumbled across this project when I was researching when different states closed the range. I noticed that Mississippi first closed the range in 1865, but what really caught my attention was that Alabama, also, closed the range in 1865. In my paper I argue that this is not a coincidence. In addition to the timing, there's a pattern of closing the range in counties with black majorities, but not in counties with few blacks. There's also plenty of documentary evidence, e.g., planters writing to the legislature asking to close the range, noting the "altered system of labor" or hoping that a closed range would "confine" their black neighbors more.

For property scholars, my paper offers a related set of observations. The first is that many "core" property doctrines are relatively recent innovations. Landowners historically enjoyed only a limited right to exclude, largely confined to buildings and standing crops. Furthermore, landowners could not rely on criminal law to enforce whatever right to exclude state law granted them.

The increasingly private nature of property (closing the range, criminalized trespass, etc.) was statutory, not judicial, in origin. Legislatures, not courts, made most of this law. In fact, judicial opinions interpreting the statutes are hard to find.

Both opening the range at first settlement and closing the range in the 19th century were sea changes in property law. Both changes abandoned centuries old rules in favor of new and untested legal regimes. In the mid-19th century, the Illinois Supreme Court noted that the "memory of man runneth not to the contrary." Someone in Virginia in 1607 would have said the same about the closed range of merry Old England.

So, what's the take-away? You should keep reading my blogging.

Brian Sawers


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