But themselves; the citizens of America are equal as fellow- citizens, and as joint tenants in the sovereignty



Download 13.22 Kb.
Date conversion18.04.2016
Size13.22 Kb.
but themselves; the citizens of America are equal as fellow— citizens, and as joint tenants in the sovereignty. From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows, that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or state sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the prince; here it rest with the people; there the sovereign actually administers the government; here never in a single instance; our governors are the agents of the people, and at most stand in the same relation to their sovereign, in which the regents of Europe stand to their sovereigns. Their princes have personal powers, dignities, and preeminence, our rules have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens. (emphasis added). d. at 470-71. The Americans had a choice as to how they wanted their new government and country to be formed. Having broken away from the English sovereignty and establishing themselves as their own sovereigns, they had their choice of types of taxation, freedom of religion, and most importantly ownership of land. The American founding fathers chose allodial ownership of land for the system of ownership on this country. In the opinion of Judge Kent, the question of tenure as an incident to the ownership of lands *has become wholly immaterial in this country, where every vestige of tenure has been annihilated.4 See supra Washburn, Section 118, p.59. At the present day there is little, if any, trace of the feudal tenures remaining in the American law of property. Lands in this country are now held to be absolutely allodial. See Supra Tiedeman, Section 25, p. 22. Upon the completion of the Revolutionary War, lands in the thirteen colonies were held under a different form of land ownership. As stated in re Waltz et. al. Barlow v Security Trust & Savings Bank, 240 p. 19 (1925), quoting Matthews v Ward, 10 Gill & J. (Md.) 443 (1839), “after the American Revolution, lands in this state (Maryland) became allodial, subject to no tenure, nor to any services incident there to.” The tenure, as you will recall, was the feudal tenure and the, services or taxes required to be paid to retain possession of the land under the feudal system. This new type of ownership was acquired in all thirteen states. Wallace v Harmstead, 44 Pa. 492 (1863). The American people, before developing a properly functioning stable government, developed a stable system of land ownership, whereby the people owned their land absolutely and in a manner similar to the king in Common-Law England. As has been stated earlier, the original and true meaning of the word 4fee” and therefore fee simple absolute is the same as fief or feud, this being in contradistinction to the term “allodium” which means or is defined as man’s own land, which he possesses merely in his own right, without Owing any rent or service to any superior. Wendell v Crandall, 1 N.Y. 491 (1848). Stated another way, the fee simple estate of early England was never considered as absolute, as were lands in allodiun, but were subject to some superior on condition of rendering him services, and in which such superior had the ultimate ownership of the land. In re Waltz, at page 20, quoting 1 Cooley’s Blackstone, (4th ed.) p.
512. This type of fee simple is a Common-Law term and sometimes corresponds to what in civil law is a perfect title. ‘United States v Sunset Cemetery Co., 132 F. 2d 163 (1943). It is unquestioned that the king held an allodial title which was different than the Common-Law fee simple absolute. This type of superior title was bestowed upon the newly established American people by the founding fathers. The people were sovereigns by choice, and through this new type of land ownership, the people were sovereign freeholders or kings over their own land, beholden to no lord or superior. As stated in Stanton v Sullivan, 7 A. 696 (1839), such an estate is an absolute estate in perpetuity and the largest possible estate a man can have, being, in fact allodial in its nature. This type of fee simple, as thus developed, has definite characteristics:

(1) it is a present estate in land that is of indefinite duration;


(2) it is freely alienable;
(3) it carries with it the right of possession; and most importantly;
(4) the holder may make use of any portion of the freehold without being beholden to any person. 1 G. Thompson, Commentaries on the Modern Law of Real Property, Section 1856, p. 412 (1st ed. 1924).
This fee simple estate means an absolute estate in lands wholly unqualmed by any reservation, reversion, condition or limitation, or possibility of any such thing present or future, precedent or subsequent. Id; Wichelman v Messner, 83 N.W. 2d 800, 806 (1957). It is the most extensive estate and interest one may possess in real property. Where, an estate subject to an option is not in fee. See supra 1 Thompson, Section 1856, p.
413. In the case, Bradford v Martin, 201 N.W. 574 (1925), the Iowa Supreme Court went into a lengthy discussion on what the terms fee simple and allodium means in American property law.

The Court stated:


The word “absolutely’ in law has a varied meaning, but when unqualifiedly used with reference to titles or interest in land, its meaning is fairly well settled. Originally the two titles most discussed were ‘fee simple’ and ‘allodium’ (which meant absolute). See Bouvier’s Law Dictionary. (Rawle Ed.) 134; Wallace v Harmstead, 44 Pa. 492; McCartee v Orphan’s Asylum, 9 Cow. (N.Y.) 437, 18 Am. Dec. 516. Prior to Blackstone’s time the allodial title was ordinarily called an ‘absolute title’ and was superior to a ‘fee simple title,’ the latter being encumbered with feudal clogs which were laid upon the first feudatory when it was granted, making it possible for the holder of a fee-simple title to lose his land in the event he failed to observe his


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page