feudatory oath. The allodial title was not so encumbered. Later the term “fee simple,” however rose to the dignity of the allodial or absolute estate
, and since the days of Blackstone the word “in absolute estate” and “fee simple" seen to have been generally used interchangeably; in fact, he so uses
them. See Book II, chap. 7, pp. 104-05 .... And further the words
“absolute” and absolutely” usually carry the fee ... By the terms
“absolute interest” we understand a complete and perfect interest,. ..,an estate in fee simple is meant. Id. at 576.
The basis of English land law is the ownership of the realty by the sovereign, from the crown all titles flow. People v. Richardson, 269 Ill. 275, 109 N.E. 1033 (1914); see also Matthew
, 10 Gill & J (Md.)
443 (1844). The case
, McConnell v. Wilcox
, I Scam. (Ill.) 344 (1837), stated it this way: From what source does the title to the land derived from a government spring? In arbitrary governments, from the supreme head-be he the emperor, king, or potentate; or by whatever name he is known. In a republic, from the law making or authorizing to be made the grant or sale. In the first case, the party looks alone to his letters patent; in the second, to the law and the evidence of the acts necessary to be done under the law
, to a perfection of his grant, donation or purchase ... The law alone must be the fountain from whence the authority is drawn; and there can be no other source. Id. at 367.
The American people, newly established sovereigns in. this republic after the victory achieved during the Revolutionary War, became complete owners in their land, beholden to no lord or superior; sovereign freeholders in the land themselves. These freeholders in the original thirteen states now held allodial the land they possessed before the war only feudally. This new and more powerful title protected the sovereigns from unwarranted intrusions or attempted takings of their land, and more importantly it secured in them a right to own land absolutely in perpetuity. By definition
, the word perpetuity means, “Continuing forever. Legally, pertaining to real property, any condition extending the inalienability...” Black’s Law Dictionary
, p. 1027 (5th ed. 1980). In terms of an allodial title, it is to have the property of inalienability forever. Nothing more need be done to establish the ownership of the sovereigns to their land, although confirmations were usually required to avoid possible future title confrontations. The states, even prior to the creation of our present Constitutional government, were issuing titles to the unoccupied lands within their boundaries. In New York
, even before the war was won, the state issued the first land patent in 1781, and only a few weeks after the battle and victory at Yorktown in 1783, the state issued the first land patent to an individual. A Getinan, supra, Part III, Ch. 17, State Legislative Grants
, pp. 231-32 (1921). In fact, even before the United States was created, New York and other states bad developed their own Land Offices with
Commissioners. New York’s was first established in 1784 and was revised in 1786 to further provide for a more definite procedure for the sale of unappropriated State Lands. Id. The state courts held, “The validity of letters patent and the effectiveness of same to convey title depends on the proper execution and record
It has generally been the law that public grants to be valid must be recorded. The record is not for purposes of notice under recording acts but to make the transfer effectual.” Id. at 242. Later, if there was deemed to be a problem with the title, the state grants could be confirmed by issuance of a confirmatory grant Id. at 239. This then, in part, explains the methods and techniques the original states used to pass title to their lands, lands that remained in the possession of the state unless purchased by the still yet un-created federal government, or by individuals in the respective states. To much this same extent Texas, having been a separate country and republic, controlled and still controls its lands. In each of these instances, the land was not originally owned by the federal government and then later passed to the people and states. This then is a synopsis of the transition from colony to statehood and the rights to land ownership under each situation. This however has said nothing of the methods used by the states in the creation of the federal government and the eventual disposal of the federal lands.
The Constitution in its original form was ratified by a convention of the States, on September 17, 1787. The
Constitution and the government formed under it were declared in effect on the first Wednesday of March, 1789. Prior to this time, during the Constitutional Convention, there was serious debate on the disposal of what the convention called. the “Western Territories,” now the states of Ohio, Indiana, Illinois, Michigan, Wisconsin and part of Minnesota
, more commonly known as the Northwest Territory. This tract of land was ceded to the new American republic in the treaty signed with Britain in 1783.
The attempts to determine how such a disposal of the western territories should come about was the subject of much discussion in the records of the Continental Congress. Beginning in September, 1783, there was continual discussion concerning the acquisition of and later disposition to the lands east of the Mississippi River. Journals of Congress, Papers of the Continental Congress, No. 25, II, folio 255, p. 544—557 (September 13, 1783).
And whereas the United States have succeeded to the sovereignty over the Western territory, and are thereby vested as one undivided and independent nation, with all and every power and right exercised by the king of Great Britain, over the said territory, or the lands lying and situated without the boundaries of the several states, and within the limits above described; and whereas the western territory ceded by France and Spain to Great Britain, relinquished to the United States by Great Britain, and
guarantied to the United States by France as aforesaid, if properly managed, will enable the United States to comply with their promises of land to their officers and soldiers; will relieve their citizens from much of the weight of taxation;..., and if cast into new states
, will tend to increase the happiness of mankind, by rendering the purchase of land easy, and the possession of liberty permanent; therefore ... Resolved, that a committee be appointed to report the territory lying without the
boundaries of the several states; ... ; and also to report an
establishment for a land office. Id. at 558, reported in the
writing of James McHenry. I
There was also serious discussion and later acquisition by the then technically nonexistent federal government of land originally held by the colonial governments. Id. at 562-63. As the years progressed, the goal remained the same, a proper determination of a simple method of disposing of the western lands. “That an advantageous disposition of the western territory is an object worthy the deliberation of Congress.” Id. February 14, 1786, at p. 68. In February, 1787, the Continental Congress continued to hold discussions on how to dispose of all western territories. As part of the basis for such disposal, it was determined to divide the new northwestern territories into medians, ranges, townships, and sections, making for easy division of the land, and giving the new owners of such land a certain number of acres in fee. Journals of Conqress, p. 21,
February 1787, and Committee Book, Papers of the Continental Congress, No. 190, p. 132 (1788). In September of that same year, there were more discussions on the methods of disposing the land. In those discussions, there were debates in the validity and solemnity of the state patents that had been issued in the past Id., No. 62, p. 546. Only a week earlier the Constitution was ratified by. the conventions of the states. Finally, the future Senate and House of Representatives, though not officially a government for another 1 & 1/2 years, held discussions on the possible creation of documents that would pass the title of lands from the new government to the people. In these discussions, the first patents were created and ratified
, making the old land-boc, or land-allodial charters of the Saxon nobles, 750 years earlier, and the letters patent of the Magna Carta, guidelines by which the land would pass to the sovereign freeholders of America. Id., July 2, 1788, pp. 277—286.
As part of the method by which the new United States decided to dispose of its territories, it created in the Constitution an article, section, and clause, that specifically dealt with such disposal. Article IV, Section III~ Clause II, states in part, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Thus, Congress was given the power to create a vehicle to divest the Federal Government of all its right and interest in the land. This vehicle, known as the
land patent, was to forever divest the federal government of its land and was to place such total ownership in the hands of the sovereign freeholders who collectively created the government. The land patents issued prior to the initial date of recognition of the United States Constitution were ratified by the members of Constitutional Congress. Those patents created by statute after March, 1789, had only the power of the statutes and the Congressional intent behind such statutes as a reference and basis for the determination of their powers and operational effect originally and in the American system of land ownership today.
There have been dozens of statutes enacted pursuant to Article IV, Section III, Clause II. Some of these statutes had very specific intents of aiding soldiers of wars, or dividing lands in a very small region of one state, but all had the main goal of creating in the sovereigns, freeholders on their lands, beholden to no lord or superior. Some of the statutes include, 12 Stat 392, 37th Congress, Sass. II, Ch. 75, (1862) (the Homestead Act); 9 Stat. 520, 31st Congress, Sess. I, Ch. 85 (1850) (Military Bounty Service Act); 8 Stat. 123, 29th Congress, Sess. II Ch. 8, (1847) (Act to raise additional military force and for other purposes); 5 Stat 444, 21st Congress, Sees. II, Ch. 30 (1831); 4 Stat 51, 18th Congress, Sess. I., Ch. 174 (1824); 5 Stat 52, 18th Congress, Sess. I, Ch. 173 (1824); 5 Stat 56, 18th Congress, Sass. I, Ch. 172, (1824); 3 Stat. 566, 16th Congress,
Sen. I, Ch. 51, (1820) (the major land patent statute enacted to dispose of lands); 2 Stat 748, 12th Congress, Sess. I. Ch. 99 (1812); 2 Stat. 728, 12th Congress, Sess. I, Ch. 77, (1812); 2 Stat. 716, 12th Congress, Sess. I, Ch. 68, (1812) (the act establishing the General Land-Office in the Department of Treasury); 2 Stat 590, 11th Congress, Sess. II, Ch. 35, (1810); 2 Stat. 437, 9th Congress, Sees. II Ch. 34, (1807); and 2 Stat
437, 9th Congress, Sees. II, Ch. 31, (1807). These, of course, are only a few of the statutes enacted to dispose of public lands to the sovereigns. One of these acts however, was the main patent statute in reference to the intent Congress had when creating the patents. That statue is 3 Stat. 566, supra.
In order to understand the validity of a patent, in today’s property law, it is necessary to turn to other sources than the acts themselves. These sources include the Congressional debates and case law citing such debates. For the best answer to this question, it is necessary to turn to the Abridgment of the Debates of Congress, Monday, March 6, 1820, in the Senate, considering the topic "The Public Lands." This abridgment and the actual debates found in it concerns one of
most important of the land patent statutes, 3 Stat 566, 16th Congress Sess. I. Ch. 51, Stat. I, (April 24, 1820).
In this important debate, the reason for such a particular act in general and the protection afforded by the patent in