Priest, Claire. “Creating an American Property Law: Alienability and Its Limits in American History.” Harvard Law Review 120 (December 2006): 385–459. --- Progressive Summary: Americans broke from the English tradition of perpetuating a landed class. They made land alienable and equivalent to money, thus freeing land for full economic use. --- English law distinguished between real property and personal property. Real property was land, and personal property was anything that was movable. As J.H. Baker has written, land "outlives its inhabitants, is immune from destruction by man, and therefore provides a suitably firm base for institutions of government and wealth." English laws stabilized the inheritance system by protecting land from the claims of creditors. By default, land was exempted from the claims of unsecured creditors. Also, when a landed debtor died, his land passed on to his heirs free of encumbrances. Even when land was pledged in secured credit agreements, it was costly for creditors to seek recourse in the common law courts and the Court of Chancery.^[The Court of Chancery was a court of equity that followed a set of loose rules to avoid the conservativeness and harshness of the common law. It was an extension of the Lord Chancellor's role as Keeper of the King's Conscience. The Court of Chancery had a greater remit than the common law courts.] The Court of Chancery gave preference to the preservation of landed estates. For instance, mortgage debts, in which parcels of land were specifically pledged as collateral, were charged to the landowner's personal property first. This privileged the heir at the expense of the other children, who typically inherited equal portions of the personal property. This limited the amount of capital available for productive investment, because unsecured creditors would have to run the risk that debtors might convert their chattel assets and purchase land that creditors could not seize. Or they would run the risk that the debtor would die, and the land would pass on to their heirs and thus beyond their reach. --- In the late seventeenth century, colonial legislatures in New England and Barbados stripped these protections. The interest of the colonies lay more in commercial expansion than protection of a landed gentry. A recession in the 1730s caused English merchants and creditors to lobby their government to remove the protections in the colonies, to make it easier for them to recover their loans. > In 1732, Parliament enacted a statute entitled the Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America ("Debt Recovery Act"). The Debt Recovery Act applied to all of the North American and West Indian British colonies. It required that all interests in real property and slaves be treated exactly like personal or chattel property for the purposes of satisfying debts.] This was a big move. It removed all legal distinctions between real property, chattel property, and slaves in relation to the claims of creditors. Under the Act, land and slaves could be sold to satisfy any kind of debt, including unsecured debt. Slave auctions for the recovery of debt became a legal institution. Land is an ideal form of collateral, because it cannot be moved or hidden from creditors. Once land was freed up to be offered as collateral, credit markets expanded vigorously. Much of this credit was used for the expansion of slavery. Many historians believe that it was American Republicanism that led to the steady erosion of the landed aristocracy in the colonies. But Priest believes the opposite is true. The Debt Recovery Act preceded the American revolution. It was motivated by British creditors' desire to get their money back. However, it had the unintended consequence of paving the way for democracy.