Private Law Theory

ABSTRACT
Each Thanksgiving, journalists discuss and debate the ‘communal’ ownership of land that allegedly existed in Plymouth Colony in the 1620s and its transition to ‘private’ property, supposedly providing an early glimpse of socialism versus capitalism in America. Recent law review articles have uncritically accepted this view. This article, by contrast, seeks to challenge this inherent over-simplification and redefine its scope. Plymouth Colony did not begin as a ‘communal’ system that radically broke away from contemporaneous English property law. Rather, the true nature of land ownership and property rights in Plymouth was simultaneously corporate and feudal: the colony existed through a series of corporate charters under the control of a London-based joint-stock company, and the colonists were bound by the last vestiges of centuries of feudal English land law. In advancing this claim, this article conducts a careful analysis of the series of land patents and land divisions that Plymouth Colony undertook during its first decades, as well as an exploration of the probate records, wills, and land deeds of six early colonists. It will then connect each series of documents to centuries of English property law, encapsulated in treatises such as Littleton’s Tenures and Coke’s Institutes. Lastly, it will highlight the pronounced influence of this legal history on American law. The Supreme Court has long relied on charters and other ‘ancient documents’ from Plymouth Colony to resolve cases involving boundary disputes between states, from Rhode Island v Massachusetts in 1838 to Virginia v Maryland in 2002. State courts throughout New England, in turn, have relied on these same charters and other documents as recently as 2019. Thus this inquiry bears not only academic consequences but also practical ones, in analyzing the very same charters and documents that such cases have long relied upon. In all, this article provides a renewed understanding of Plymouth’s legal history and relevant insights into the impact of English legal customs on the origins of American property law.

Cronan, Liam, Of Property and Pilgrims: The Myth of Communal Property and the Realities of Corporate Charters and Land Tenures in Plymouth Colony (January 30, 2024), 56 St Mary’s Law Journal, Forthcoming.