Document Type

Article

Publication Date

3-30-2005

Keywords

Maryland, land patents, quit rents, fee tail, confiscation

Comments

from the Working Papers Series

Abstract

This essay examines the historical background behind the 1826 U.S. Supreme Court case of Cassell v. Carroll. The legal merits in the case concerned arcane questions of feudal property law which the Court avoided and left unanswered. Today the case is of little jurisprudential significance. It is the historical record behind Cassell v. Carroll that tells a story that continues to be of interest and importance today. It provides a window on the economic and social life in provincial Maryland. It tells the tale of two dysfunctional dynasties—the Barons of Baltimore (the Calverts), who lost their faith, their fortune and came to be charged with bastardy, murder and rape, and the family of Carrolls who kept their Catholic faith and amassed great wealth, but still found their good name sullied with allegations of self-dealing, usury, breach of trust, illegitimacy, and slave-driving. The essay argues that the Carrolls succeeded while Calverts failed because (in today’s parlance) they had a better “business plan.” The Calverts clung to their feudal rights while the Carrolls diversified their investments and plunged into the market economy. Capitalism trumped feudalism. The essay casts doubts on the sincerity of the revolution rhetoric of “freedom.” This narrative suggests, at least from the viewpoint of the Carroll family, that money not freedom was the driving engine of the American Revolution. The Carrolls were Maryland’s largest holders of slaves and indentured servants and they had no intent of relinquishing them. Captive labor was an important source of their wealth and a necessary factor of production on their agricultural plantations. The Carrolls only hesitantly took the risk of revolution and popular government to increase free trade, to escape perpetual debts, and to increase the supply of money And finally the story of Cassell v. Carroll turns the arguments of social conservatives upside down. It portrays the cherished right to freely market one’s property for top dollar (which today’s property rights advocates fervently seek preserve) as nothing more than the creation of 15th century judicial activism. And it depicts the American Revolution as an assault on the private property of the ruling elite with the “rule of law” serving as an excuse for the massive confiscation of the land from the rightful owners.

Disciplines

Legal History

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