UNALIENABLE RIGHT TO PROPERTY

ALLODIAL RIGHTS

THE PRINCIPLE IDEA BEHIND THE UNALIENABLE RIGHT TO PROPERTY

 

Jefferson’s original draft of the Declaration of Independence read “life, liberty, and property.” However, property was edited out at the suggestion of Ben Franklin because of its implications towards slavery.

The pursuit of happiness replaced it and has become the commonplace recitation. This unfortunate expediency edit has played a significant role in removing from public discussion and common education the study of the unalienable right to property; along with the affixed dominant founding era principles of property rights.

Instead, the pursuit of happiness dominates public discussion. Of course happiness is wholly subjective and the pursuit of it is predicated on how happiness is defined.

This gives rise to all kinds of social philosophy and policy that unfortunately empowers the state, not the people as intended.

What people don’t understand is that the legitimate pursuit of happiness is predicated on sound public understanding and acceptance of property rights.

Two Historical Theories of Property Rights

Under the Israelite theocracy of the Old Testament, God was the Lord of the land.

He permitted rural lands and village property to be leased but perpetual ownership could not be transferred from the tribe or family to which it was assigned originally and absolutely.

This created a unique form of unalienability. In the year of jubilee, all leased real property reverted to the original tribe or family to whom it was assigned. The tribe could not transfer the land perpetually or completely. It was unalienable (non-transferrable) but was still leasable.

The lease price was determined according to how many years remained before the year of jubilee. (Leviticus 25:15-16, 23-33, 27:17-24; Numbers36:4; Jeremiah 32:7-16, 25, 44; and Ezekiel 46:18.)

This type of ownership and its accompanying rights was called allodial. It was the absolute ownership of real property by the people. No acknowledgment was given to any other man or government, to any superior or overlord on the earth.

The policy of allodial property rights was used by the Israelites and the Anglo-Saxons and formed the basis for what the English called Common Law.

A majority of civilizations, however, have followed the other theory of property rights: feudalism.

Feudalism is a system or economic policy where all real property is held by a superior or lord: usually the King, Sultan, or Prince. The superior imposes “fees” (taxes) on those he allows to use his real property and has the unabridged right to regulate his property as he sees fit.

Real estate as we know it today is derived from this system. Real (the King) estate (holdings or possessions).

It is a sort of pyramid system where there is only one allodiary – the King – and all property rights are delegated by him to others. Either directly to those who will use the land, or to managers (barons, lords) who will parcel out the land and manage it.

The King, who is the sole allodiary, possesses all allodial – or absolute – property rights. Everyone else has privileges or immunities and must pay rent for the land and submit to the regulations imposed on its use.

The allodial rights reserved by the King were of four basic kinds: 1) subject to the right of the King to require servitude from the property, 2) subject to the right of the King to repossess the property, 3) subject to the right of the King to inherit the property, and 4) subject to the right of the King to regulate the property.

These two theories, allodialism and feudalism, are at direct odds with each other. They advocate opposing economic systems and place property rights in the hands of different entities.

What is Allodial?

Since most people have heard of feudalism, and very few have heard of allodialism, there are a number of words associated with allodialism that need clarifying. Let’s consult some founding era lay and legal dictionaries.

Noah Webster’s 1828:

ALLODIUM, n. [Ger. origin; al all, and ohd possession, property. It means, therefore, entirely one’s property.]

1. Freehold estate; land which is the absolute property of the owner; real estate held in absolute independence, without being subject to any rent, service, or acknowledgment to a superior. It is thus opposed to feud. In England, there is no allodial land, all land being held of the king; but in the United States, most lands are allodial.

ALLODIAL, a.

1. Pertaining to allodium; freehold; free of rent or service; held independence of a lord paramount; opposed to feudal.

William Blackstone’s Commentaries on The Laws of England, Volume 2:

ALLODIUM, n.

1. Absolute property in land, wholly irrespective of any superior Lord, and without any duty of rendering rent or service.

John Bouvier’s Law Dictionary Adapted To The Constitution and Laws of The United States of America and of The Several States of The American Union:

ALLODIUM,

1. Signifies an absolute estate of inheritance, in contradistinction to a feud. In this country the title to land is essentially allodial, and every tenant in fee simple has an absolute and perfect title.

There are many other dictionaries we could cite but the meaning is clear. Allodium is the direct opposite of feudal.

Here are the other words associated with allodialism.

An allodiary is a personwho owns real property in allodium.

Allodification is the process of making non-allodial (or feudal) real property allodial.

Infeudation is the process of making allodial lands feudal.

Allodialism comes from the Greek phrase , “but from God”; which means there is no earthly ruler or superior who can claim lordship over real property held in allodium by another individual, since God is the direct Lord of it and has granted power to exercise dominion over it to the allodiary.

Blackstone says the “grand and fundamental maxim of all feudal tenure is that all lands were originally granted out by the lord sovereign, and are therefore holden either mediately or immediately of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee: and the grantee, who had only the use and possession according to the terms of the grant, was styled the feudatory or vassal, which vassal or tenant upon investiture did usually homage to his lord.” (Commentaries V.2)

Under the feudal economic system people did not have unalienable property rights, they had granted privileges of use from their Lord subject to all kinds of taxes, fees, regulations, and military service.

There is only one sole allodiary (a person who owns real property in allodium) under that system.

By contrast, in a free market system where all individuals have unalienable rights to property (not just the King), all real property is held in allodium by individuals; which is the condition of absolute ownership. No recognition is given to a superior or overlord with respect to it and it is not subject to taxes, fees, or external regulation.

The allodial rights of individuals are supreme with respect to their property. Allodial real property is owned absolutely without being subject to any rent, service, or right of superior or lord, including the state.

The Unalienable Right To Property And The Free Market

In a free market setting different products come on and off the market as they are transferred from owner to owner. When I purchase a widget at the store I am laying claim to a piece of property held previously by another owner.

When there is no regulation whatsoever over the transaction by any government it is called a free market purchase.

Similarly, when there is no subsequent regulation or taxation over how I use the widget (short of violating the rights of others) then my unalienable rights to my property are secure.

The same is true of real estate. We have to understand that land is just another commodity on the market. It is not separate from market operations. The founders felt it was the most important property right to protect because of its foundational role in determining the level of freedom a society could enjoy.

For when allodial rights in property (specifically dealing with land) are not secure then private property is abolished.

Legal rules for real property must be developed by the government to govern the use of real property, the resources thereon, and to regulate occupancy.

One dramatic consequence of a shift away from allodial rights and real property held in allodium is that the means and factors of production are transferred into the hands of the state.

For the sole allodiary is the only entity which possesses the rights to the resources upon its free-hold estate.

As in feudal times, the sole allodiary was the King. He dictated the use, cost, and occupancy of his lands.

In his Summary Review of The Rights of British America, Jefferson laid claim to the fact that American land was allodial in nature:

“America was not conquered by William the Norman, nor its lands surrendered to him, or any of his successors. Possessions there are undoubtedly of the allodial nature.”

However, when the people are no longer the sole allodiaries, their allodial rights – or their unalienable rights to property – are transferred away. They become subject to the regulations and dictations of the usurping sole allodiary.

In a free market, there is no difference between purchasing a bike and purchasing land. They are both commodities the value of which is determined by the choice preference and subjective value judgements of individuals.

Neither are regulated by the state before, during, or after purchase.

The Meaning of The Unalienable Right To Property

I have said elsewhere that unalienable means non-transferrable and that a right is the authorization to act. It is not the action. Also, that our unalienable rights come from God.

We have discussed above the true nature and legal meaning of absolute ownership in property, or allodial rights, or property held in allodium.

Therefore, the unalienable right to property, or allodial rights, means: the non-transferrable authorization by God to man, for man to own and act upon, free and clear of any other entity on the earth, the goods, commodities, resources, and elements of his land without any regulation, fees owed, or taxes due to any other person or government on earth.

As it relates to land, allodial rights include the authorization to act upon the topsoil, timber, crops, metals, buildings, livestock, wildlife, contractual improvements or any other good or resource found on the land without any interference by any other entity.

Under plenary allodialism, such real property could not be taxed or regulated.

This is the basis of a free market. There is no government intervention whatsoever with market-based actions and ownership.

If allodial rights in land are stripped from the people then we have a situation of totalitarian government. The four rights of the feudal lords are reapplied, but the names are changed.  These are now referred to as taxation, expropriation, escheat and eminent domain.

The right of the government to own specific portions of land for specific reasons is clearly spelled out in the Constitution. (This is a topic for another article)

However, nowhere is power granted for them to retain public land for unenumerated purposes, nor is power granted for them to regulate private property. This has come from an improper interpretation and construction of the commerce clause.

The power to regulate property is a right reserved to each individual property owner. Not because the government granted it, but because it is unalienable.

It is this unregulated pursuit, acquisition, and use of property that defines and enables the pursuit of happiness.

A free market world where our unalienable allodial rights are secured is a world, the happiness, success, growth, glory, progress, and order of which we do not now enjoy nor comprehend.

Yet, it is a world worth giving our life, fortune, and sacred honor for.

Our Next Class!

We will be hosting another class on January 15th. The morning session from 9 – 12 will be part 1; the afternoon session from 1-4 will be part 2.

We have a new location. The Novell cafe in Provo has a large meeting room we have been given permission to use.

Below you will find directions.

Click HERE for more information about our class outlines.

Click HERE for testimonials.

As always please RSVP so we have an idea of the numbers to expect.

yours in Freedom,

The South County Constitution Class

constitutionclass.ut@gmail.com

I-15_to_Novell cafe bldg

Forms vs Issues

America’s Needed Shift Away From Issues and Back To Forms

I have said elsewhere that you can never change things by fighting the present reality. Instead, change the model that has created it, and the reality will change automatically.

Another way to say this is you can never change things by haggling over issues and their complex nature. Instead reexamine the form, or the structure, or the system that generated the issues, fix any defects or recommit to following proper procedure and the issues will dissolve automatically.

Let me give you an example. I was recently asked by some members of the Central Committee of my county’s Republican Party to teach them Roberts Rules of Order. (RR)

The By-Laws of the State Party were lately altered making RR the standard rules of procedure for all meetings. Some members of the Central Committee don’t know the rules and so are being railroaded into decisions and votes they disagree with.

Some members are fed up. They want a voice again but don’t know how to learn the rules.

Now I am not a member of the Party but I have associates and family who are. Through a series of social connections those who wanted to learn the rules discovered I knew them. Thus I ended up teaching a 3 hour class Thursday nights to a group of Republicans who don’t know how to operate inside their own party.

The first class I had a little over 70 slides prepared detailing the order of motions, how to make a motion, etcetera. We only made it through 10 slides.

I spent a majority of time fielding questions. Members would relate a scenario that happened in a certain meeting – most of which concerned actions of their Chair – wondering if it was valid and what they could do to stop it.

I could fill volumes with the related cases of flagrant and willful violations of the rules. The intent of which, it was obvious to me, was to support the specific interests of the dominant powers within the Party. However, that is not the point of this article.

One case involved the Chair arbitrarily suspending the rules and throwing out the orders of the day, (the previously established agenda). The Chair then proceeded to make a series of executive decisions that violated the rights of members of the body and gave special privileges and recognition to those in the Party who, I learned later, were the chief forces that placed him in the position of Chair.

I also found out that the Chair was himself almost totally ignorant of RR which inevitably led to him ruling by whim and frustration instead of by law.

Gotta love party politics. They are so good for freedom [sic].

Once I understood that 90% of their problems or issues stemmed from the Chair and the process of selecting the Chair I was able to resolve, in a fundamental way, all their concerns.

I simply told them they were focusing on the wrong thing.

FORMS VERSUS ISSUES

You are trying to solve your problems by focusing on and directly attacking them, I said. You should be focusing on your Form. It’s the structure that is the problem. Fix your Form and all these aggravating problems, or issues, will automatically dissolve.

Confused by this new concept of Forms versus Issues they asked me to explain.

Laws can be broken down into various types, categories, and functions. Forms and Issues are simply one way of grouping different laws.

First, laws that deal with FORMS. These set up, grant powers, and control fundamental operations of any institution. Including government. They are the frame, structure, or skeleton of the organization.

Second, laws that deal with ISSUES. These are also called policies, bureaucratic regulation, or most any law or rule created by an organization in addition to those that govern their form. “By-laws” are a good example. These are the flesh, decor, ornamentation, or appendages to the structure – or FORM.

A brief example is the difference between the law that governs the actual Constitutional process of the Electoral College and laws that would amount to the President’s current social agenda.

Unfortunately, when human beings approach a problem that needs solving we tend to concentrate on the issues first. Sometimes they become the beginning, middle, and end points as well.

Most know this approach tends to create more issues. Whether in a marriage, corporation, club, or government increasing the quantity of rules to solve a problem tends to generate additional problems and thus requires more rules.

Of course this is a slippery slope. Eventually it becomes “necessary” to make a rule which will ostensibly “solve” current or even potential issues of life in every particular. It gives rise to dictatorial governing.

Additionally, this slippery slope inevitably leads not towards, but away from the goal of overcoming issues.  It is similar to attempting to heal a sickly fruit tree by only examining the fruit and lopping off the bows that produced the sickly fruit, but never examining the trunk, root system, and soil. With each additional unenlightened prune comes an additional set of problems.

Once the forms are buried beneath piles of issues not only are those forms forgotten, but they are easily altered. The alteration, though, is not necessarily substantive – the words themselves are not changed. Rather, the alteration is done through implication. The meaning of the words change either through deliberate manipulation, ignorance, or both.

BEGIN EVERY DISCUSSION OR DECISION MAKING PROCESS WITH THE FORMS IN MIND

I explained to my class that the proper place to begin evaluation is in the FORMS. These should be checked on a regular basis for soundness, clarity, applicability, proper implementation, and potential inconveniencies.

No man who has cows escape his pasture will first spend time looking the cows over, claim that one is too big, another too smart, while yet another is too small and dumb and conclude to sever all their hooves to ensure they no longer escape. Instead he naturally will turn to his fence, find the weak point and mend it.

He also will regularly check his fence to ensure long term soundness.

If the supporting structure is sound all else falls into place. I told my class they need to fix the form in their Constitution that governs the process of selecting their Chair. If that is structured in a way that secures the rights of the body and ensures the impartiality of the chair then most of their problems would go away. Automatically.

AMERICA AND AMERICANS NEED TO SHIFT AWAY FROM DEBATING ISSUES TOWARDS RESURRECTING FORMS

America must leave the issues to the winds and begin looking for and mending those FORMS that have been ignored, replaced, or altered.

Alexander Tytler showed that the history of nations and of people in general tend to walk roughly the same path through the following cycle:

Nations, and people in general, are born in relative freedom or liberty; they gain abundance and prosperity; become proud and haughty; then grow complacent and apathetic; are then driven into bondage; turn to God and rekindle spiritual faith; develop courage and win back freedom for a time.

If we were to take and cut the cycle in half with a line running from the arrow between Freedom and Abundance diagonally down to the arrow between Bondage and Humility we can place ISSUES to the right and FORMS to the left. As shown.

Along the path from Abundance to Bondage those laws tending to dominate the attention of society and which they spend most energy arguing over is ISSUES, or policy – the purpose of which has become to grant special power to special interests and regulate human action as efficiently as possible.

In contrast, from Humility to Freedom, of necessity, laws in the category of FORMS gain the spotlight, indeed the magnifying glass, and the complex irrelevant issues fall to the floor.

It is a necessity because those forms gave birth to freedom. If freedom is to be maintained then so to must those forms.

In this election year we have seen that everyone is a constitutionalist. It is the current fashionable wind of doctrine and any conscious person who wants a chance knows they must respect it.

However, after a real examination of the talking points it is easy to see they are – for the most part – just a list of issues. The few exceptions are term limits, balanced budget, and holding congress to its trust obligations of not violating its enumerated powers of action. I don’t necessarily agree with all these, but they are the closest proposals to forms I have seen.

The media, newspapers, activists, and the people in general are mostly talking about issues. Examine them and see for yourself. Compare them against the difference between FORMS and ISSUES and see which group they fall into. Very few will be forms.

This is not to say they are not important to address. For any law that takes away freedom must be understood for what it is. My point is that the process of repealing bad laws is done much faster and effectively by first changing or remembering the FORM that brought about the environment that produced the bad law(s).

However, the growing interest to understand the Constitution is a primary example of the beginning of the shift from ISSUES to FORMS. Many have realized the only way to part the curtains of complexity and technocracy is to go back to the original understanding of the Constitution.

The Constitution itself is an articulate, artistic, and masterful set of FORMS. Those forms established, set up, and maintain freedom.  Despite all the violations the masterful structure of the Constitution has been and continues to be the leading roadblock to those who have and still do push for an empirical internationalist agenda.

It is still securing a large portion of the blessings of liberty to Americans because it is a good form.

If we want more of the blessings of liberty for ourselves and our posterity we have to stop directly fighting the present reality. We have to stop getting caught up in the distraction of issues.

Instead, if we want real change, real freedom, then we must go back to the model that has created it. Americans need to shift their focus and attention away from the distracting issues towards resurrecting the concrete forms that built the greatest and freest civilization the world has known.

In this way most of America’s issues will dissolve and our present regulated, bureaucratic reality will change automatically.