I have previously presented my thoughts on the matter of land as something that can be owned by an individual – it must be owned by someone, after all; why is not everyone eligible? There are some who claim that this is not possible – that land cannot be owned, or that only the sovereign (king, government, etc.) can own land. Where does this idea come from?
Some background is in order:
Allodial title constitutes ownership of real property (land, buildings and fixtures) that is independent of any superior landlord….Allodial lands are the absolute property of their owner and not subject to any rent, service, or acknowledgment to a superior. Allodial title is therefore the opposite of feudal land tenure.
Allodial describes title that is absolute. The opposite of feudal land tenure…interesting.
Allodium, meaning "land exempt from feudal duties", is first attested in English-language texts in the 11th-century Domesday Book, but was borrowed from Old Low Franconian…in the Salic law (ca. A.D. 507-596) and other Germanic laws.
The concept of allodial title pre-dates English common law with roots in medieval law – the so-called dark ages that we are not supposed to know about. “Land exempt from feudal duties” sounds like title completely free and clear, with no encumbrance.
But this is not the situation under common law:
Most property ownership in the common law world is fee simple.
What is fee simple?
In English law, a fee simple (or fee simple absolute) is an estate in land, a form of freehold ownership. It is the way that real estate is owned in common law countries, and is the highest ownership interest possible that can be had in real property. Allodial title is reserved to governments under a civil law structure.
This is a bit confusing. If fee simple is the highest ownership interest possible, what is allodial title? Is it lower than fee simple title? Can there be something higher than “the highest ownership interest possible?” This seems not possible.
Why is allodial title reserved to government?
Fee simple ownership represents an ownership interest in real property, though it is limited by government powers of taxation, eminent domain, police power, and escheat, and it could also be limited further by certain encumbrances or conditions in the deed.
So fee simple is the highest ownership interest possible to the people. Doesn’t this seem a little fishy?
The word "fee" is derived from fief, meaning a feudal landholding.
What does this mean?
Feudal land tenures existed in several varieties, most of which involved the tenant having to supply some service to his overlord, such as knight-service (military service).
So, you own the land as long as you serve the king. (Later, we will see that the service is not for some duty owed, but because the king claimed ownership of the land. The payment was a tax, independent of any duty owed.)
In English common law, the Crown has radical title or the allodium of all land in England, meaning that it is the ultimate "owner" of all land.
See! Someone always owns the land.
How is it that title was more absolute in medieval times through Germanic law than is possible through English common law? What changed? When and how? (I think I can guess the “why”?)
From “A History of Medieval Europe,” by R.H.C. Davis comes the answer. Feudalism (describing the relationship of lords to kings) was the reality of much of Western Europe by the eleventh and twelfth centuries. Such power was localized – not available to the Emperor or to kings except in regards to his specific holdings – his demesne. The lord, with allodial title to his land, had an independence from the king not available to landholders under common law.
The customs of feudal law – the relations between emperor / king and lord – were regularized by this time, and this march of feudalism was irresistible. The king might oppose this, but not successfully and not for long. The strongest kings, instead of opposing this march, embraced it. From this was born the feudal monarch – the king who would claim title to all the land.
The feudal monarch was not grounded in the old tradition – it was a new creation, not found in the earlier periods of the Middle Ages. Davis describes it as “a New Leviathan, the medieval equivalent of a socialist state.”
In a socialist state, the community owns, or should own, the means of production. In a feudal monarchy, the king did own all the land – which in terms of the medieval economy might fairly be equated with the means of production.
Someone always owns the land. It isn’t the community; it is the king.
The best and simplest example of a feudal monarchy is to be found in England after the Norman Conquest. When William the Conqueror defeated Harold Godwinsson at the Battle of Hastings (1066)…he was…able to claim that he had won the whole country by right of conquest. Henceforth, every inch of land was to be his, and he would dispose of it as he thought fit.
As is well known, he distributed most of it to his Norman followers, but he did not give it to them in absolute right. They were simply his tenants and held the land from him. A revolution had thus been effected….
Thus, in Norman England, the word allodium was unknown; on the continent it denoted land which was a man’s absolute and inalienable property, but in England there was no such thing. All land was the king’s, and the best a subject could do was to hold land freely from him.
Someone always owns the land. And in common law, as opposed to Germanic law, that “someone” is the king.
The Domesday Book documented all of William’s holdings. The names of the tenants are listed, but it is clear that the land is held of the king. Every detail was documented – down to the number of ploughs in each manor! Most important was the amount of tax payable. The forebear of a property tax register.
It was possible for the tenant to make the fief hereditary, if he paid his overlord a “relief” – a money payment fixed arbitrarily by the overlord. The tenants would often complain that the payment demanded was too high, but as the king had every detail of the holdings in the Domeday Book – including what the land would be worth if it was fully exploited – he could select the highest tax that he felt the tenant could afford or would be willing ultimately to pay in order to keep use of the land.
If the tenant died without heir, or all heirs were minors, the king had great leeway in exploiting the property, up to and including keeping it for his own use or selling it for his own profit.
Eventually, the system of feudal monarchy spread throughout Western Europe. In some cases, like in England, this was based on conquest. In others, because the king’s advisors were skillful at inventing history.
All land is owned. Someone decides control, use, and disposition. It is not possible that land cannot be owned – those who propose this fiction are serving up land to the king, or to the state – the “New Leviathan.”
Certainly, William the Conqueror did not feel bound by such theories although he would be pleased by the advocates of these!