Allodial Property and the Restoration

July 10, 2007 | 16 comments
By

Oliver Cowdrey has the distinction of being one of the few Mormon dissidents to make his stand against church authorities on the basis of obscure doctrines of real estate law. After the church was expelled from Jackson County, Missouri, Oliver was brought up before the Far West High Council for, among other things, selling his property in Jackson County. Oliver refused to attend the church court, writing:

Now sir the lands in our Country are allodial in the strictest construction of the term, and have not the least shadow of feudal tenours attached to them, consequently, they may be disposed of by deeds of conveyance without the consent or even approbation of a superior.

In the fullness of time, Oliver was excommunicated. Since then, Mormon historians have generally glossed over this jargon laden bit of Oliver’s letter. Indeed, even Mormon law professors have found Oliver’s use of legal jargon strange. Steven Smith, for example, has written:

I think it would be fair to say that on [this point] — that is, a dispute over property–Oliver’s position seems a bit bizarre. . . . In his response, Oliver got into a discussion of whether land in this country is “allodial” or subject to “feudal tenures.” He asserted the rights of property ownership under English and American law and also alluded to principles of religious liberty and church-state separation. Then from these assorted legal propositions he somehow drew the conclusion that the Church was acting wrongly or beyond its authority by giving direction in these matters. . . . Oliver asserted other grievances (including a complaint about what we might now describe as the circumstances surrounding the origins of polygamy), and I admit to being in sympathy with some of Oliver’s concerns. Even from a distance, though, I think we can say that on this specific issue of property, Oliver seemed confused. Why would he think that civil law governing property ownership would mean that a church cannot impose conditions or regulations on its members? Why would the fact that in this country property is allodial rather than feudal (whatever that means) preclude a church from giving direction to those who choose to belong to it, even in temporal affairs?

Much as I respect Steve Smith, however, I think that he got this one wrong. I think that the reference to allodial land and feudal tenures gets at the heart of how property gets conceptualized within Mormonism.

Feudal tenures refer to medieval doctrines in the common law of property by which the ownership of land created certain kinds of recipricol social obligations. The way in which one owned land defined ones place in the social system. Every person “held their land of” someone else. A deed, for example, might specificy that Cedric held Blackacre in knights service of the Duke of Northumberland. What this meant was that Cederic’s ownership of Blackacre created an obligation on his part of loyalty and service to the Duke of Northumberland. In turn, the Duke – at least in theory – had obligations to protect Cedric and provide him with justice in disputes with his neighbors. Legally speaking, these were not free-floating rights or obligations. They inhered in the concept of property itself. To own Blackacre meant to have a certain set of obligations in the community in which Blackacre was located.

By contrast, “allodial land” refers to land free of any feudal tenures. In other words, it was property whose ownership was not formally tied to social obligation or social status. Rather, to own allodial land is to own it in fee simple absolute, which means that subject to the general laws governing all, one is the undisputed master within one’s property. In contrast to the feudal system, under an allodial system of land ownership, property performed a very different function. Rather than acting as a nexus of social obligation, property marked a boundary of social obligations. On the far side of my property line was public space where my actions were open to others, but once within my property I was in a private space where – with few exceptions – I could act free of social obligation so long as I did not cross the boundaries marked by another’s property.

At the time of this dispute, Oliver was launching into his career as a lawyer. Like virtually all frontier attorneys, he had no formal training, but it is very likely that he studied St. George Tucker’s American edition of Blackstone’s Commentaries on the Laws of England, the leading legal textbook of the day. In chapter 4 of Book III, Blackstone provided an extensive discussion of “The Feodal System.” In his footnotes, however, Tucker noted that, motivated by a “republican spirit” the old feudal rules had been repealed by statute in America, and “[i]t was expected that every trace of that system would have been abolished in this country when the republic was established.” In other words, the transformation from monarchy to republic, from tyranny to freedom transformed property from a site of social obligation to private freedom. (A generation earlier John Adam’s had employed a similar dichotomy in his Dissertation on the Canon and Feudal Law, an extensive polemic against British policy in the form of a learned treatise on English law.)

The Mormons of Missouri did not try to reinstitute feudal tenures. They did, however, reject the view of property that Tucker (and Oliver) associated with “the republican spirit.” First, they rejected the notion that property marked off a private, autonomous sphere. Rather, they insisted that one never owned any property in the sense of having an absolute moral right to its control. Only God owned property in this way. All of the rest of us held our property as a stewardship to him. In good Mormon fashion, of course, this abstract point was put into concrete form in the law of consecration, which insisted that everyone deed their property to the Bishop and receive in return a stewardship, which while ultimately taking the form of a deed in fee simple, carried with it obligations to the community that the community could enforce in its own courts. In short, Mormonism transformed property from a site of individual freedom into a site of social obligations. The vision of a man independent in his allodial castle was replaced with that of a saint holding a stewardship in the Kingdom of God. Oliver’s protest, far from being a pedantic display of newly acquired jargon pointed toward a fundamental transformation that the Restoration had wrought.

In institutional terms, the law of consecration and stewardship of the 1830s was a noted failure. I see no reason, however, to suppose that this fact undermines the basic conceptual revolution in property wrought by the restoration. We still covenant to consecrate all that we possess back to the Lord, and we still insist that the world is the Lord’s and all things that in it are. We are stewards. Unlike Russell and other progressives, I don’t see that this necessarily suggests that rejection of free market capitalism, which has much to recommend it in practical and moral terms. It does suggest, however, that Latter-day Saints should be uncomfortable with absolutist appeals to property rights. It is not an allodial world in God’s eyes.

Tags: , ,

16 Responses to Allodial Property and the Restoration

  1. Struwelpeter on July 10, 2007 at 3:51 pm

    The 20th Century corollary would be the FLDS, whose attempt at the United Order was structured someone differently, in that the faithful deeded/consecrated their lands to the United Effort Plan Trust, which until recently had the FLDS leadership as trustees. When members of the group became disenchanted with FLDS leadership, the FLDS took the position in court that these “apostates” were tenants at will who could be ejected for any or no reason at all. Some dissidents successfully showed sufficient connection to their homes that they were awarded life estates, while those whose connections were more tenuous found themselves without any ownership rights.

  2. Keri on July 10, 2007 at 5:55 pm

    This is an interesting post. Thanks for bringing it to light. I’ve always been interested in the intersection between consecration and a market economy, although I have yet to formulate any concrete ideas about the subject. I’m still new to the legal world, and property is one of my weakest subjects.

  3. Edje on July 10, 2007 at 9:02 pm

    Thanks.

  4. Kent Larsen on July 10, 2007 at 9:14 pm

    So, Nate, is US society moving back towards feudal property laws, given the rise of community regulations and local property laws?

    When I visit my family in the Phoenix, Arizona area, I’m shocked by how much every house looks like its neighbors, apparently because there are community regulations that control everything from what kind of modifications can be made to a home’s floor plan to what color it can be painted. And they seem to all require stucco for some reason.

    And then there is the news this week in Orem of the arrest of a 70-year-old woman for failure to water her lawn!

    Perhaps we don’t have a property obligation to the local lord, but we do seem to be adopting obligations to our neighbors, and we apparently have an obligation to care for the property in our stewardship on some level. While the rules of community associations are relatively recent, we have had zoning ordinances for many years, which attempt to reach similar goals.

    If I remember correctly, Pres. Kimball spoke something of this obligation in the 1970s, urging members to keep up their property — and I believe he drew on the principal of stewardship to support his prescription. I do understand, and agree to some extent, with this idea.

    But I’m also increasingly uncomfortable with many implementations of these rules and ordinances (and zoning ordinances have caused the Church no end of trouble when it tries to construct Temples and meetinghouses). Sometimes architecture and landscaping are artistic expressions, and I’m very uncomfortable with neighbors and zoning boards exercising a lot of control over these expressions on private property.

    To say nothing of the obvious over-reaching of arresting a 70-year-old woman over whether her lawn has been watered.

  5. ed42 on July 10, 2007 at 10:06 pm

    Funny how “we still insist that the world is the Lord’s and all things that in it are” is not brought up when talking about “render unto Caeser”.

  6. Kristine on July 10, 2007 at 11:34 pm

    Clearly, I missed the latent property law issues in “Book of Mormon Stories”: “giv’n this land, if they lived righteously” is obviously pointing to feudalist notions of property on a grand scale :)

  7. JKC on July 10, 2007 at 11:35 pm

    Last semester (the second of my first year of law school) I was mildly amused to see allodial estates mentioned by Oliver while reading (I think it was) RSR. But I had no idea that even intelligent law profs wouldn’t get what Oliver was talking about. It seemed pretty clear to me that Oliver was bent up about the fact that the consecration part of the gospel was incompatible with the jingoistic overblown individualistic atitude that sometimes passes for patriotism. I guess that just shows that my property prof was focused on teaching arcane stuff.

    Like Nate, I don’t think the law of consecration means a wholesale rejection of the free market. But it does change what it means to “own” something. That change makes some people uncomfortable. In my senior seminar in the BYU English department I was suprised how, when we got into a discussion of the united order, so many of my classmates had to insist so adamantly that the united order (both the Smith and the Young versions) didn’t REALLY limit private ownership and ACTUALLY had nothing against a completely unregulated capitalist system of competition. It made me chuckle that some of them seemed so concerned with making Joseph Smith fit the mold of Adam Smith. Especially in an English class, you’d think they would have all been closet marxists. :)

  8. Ardis Parshall on July 10, 2007 at 11:53 pm

    Oliver’s argument sounds like a variant of the indignant refrain of members summoned to church courts who announce that as American citizens they have the right to demand such courts to be conducted by the same rules as American secular courts.

  9. Dave on July 11, 2007 at 12:22 am

    Ardis, that raises the question of why LDS commentary on the LDS disciplinary system defends it as actually reflecting some of the procedural aspects of the formal legal system. Commentators seem to be endorsing the “indignant refrain” of members summoned to such proceedings. Here’s Bruce C. Hafen from the Encyclopedia of Mormonism (article “Disciplinary Procedures”):

    Members for whom a formal disciplinary council is convened are given advance notice of the reasons for the council and an opportunity for a hearing. Although legal procedures do not govern the proceedings, the Church observes basic standards of fairness. The proceedings are officially recorded by written minutes. Both the hearing and the formal record are treated as confidential information, and disciplinary penalties are announced only to those Church officers who have a need to know, except when the offender poses serious risks to uninformed Church members. Those subjected to disciplinary sanctions have a right of appeal.

    Nate, it seems like feudal restrictions on property were truly attached to the property (a new owner would take the obligations as well), whereas the covenants modern Mormons make are entirely personal. Even in the 19th century, when tithing was paid in kind, it seems like it was in payment of a personal obligation rather than the satisfaction of some obligation tied to the land. I’d be inclined to think of the prohibition against Missouri Mormons selling their land as more of a historical anomaly related to the Missouri mess than a reflection of an LDS theory of property.

  10. endlessnegotiation on July 11, 2007 at 9:23 am

    Nate:

    I love this post but I feel it’s somewhat incomplete. If you have time a there are a few additional issues I would hope you could address.

    1) D&C 134 specifically addresses the concept of individual right and control of property. Given the rather explicit nature of the language used how do you reconcile attaching any sort of social obligation to property? I was really surprised your original post made no mention of this scripture passage.

    2) Do you think property is purely a mortal convention or do you envision an eternal corollary? If it’s purely a mortal convention do you see it as a necessary principle for righteous mortality? If you see property as something of an eternal principle what would that look like?

    3) How does the concept of social obligation impact the concept of the free will offering? If I’m giving to God something that is not entirely mine to give what impact does that have on the nature of my offering?

  11. JKC on July 11, 2007 at 12:35 pm

    endlessnegotiation,

    I don’t want to speak for Nate; I’m sure he’ll have a much more erudite response, but I’ll take a crack at your first question.

    “D&C 134 specifically addresses the concept of individual right and control of property. Given the rather explicit nature of the language used how do you reconcile attaching any sort of social obligation to property?”

    My understanding is that Section 134 was written by Oliver Cowdery, who, as we already know, had pretty strong views on property. But whether 134 was written by Oliver or by somebody else, it is not presented anywhere as a revelation, only as a “declaration of belief” regarding secular government. And as such, it is pretty typical 19th century political fare. Since it is not a revelation, and since the law of consecration is derived from revelation, I think any inconsistency between the two should be resolved in favor of the revelation.

    The stickier part is whether the process of being adopted by a unanimous vote at conference makes something tantamount to revelation and just as binding. There’s a reasonable argument that it does. But it doesn’t completely convince me bcause 134 is still not a revelation in substance. It is something that the church agreed to adopt, not something that the Lord told the church. It was concerned much more with the politics of frontier America in 1835 (note the pointed disavowal of abolitionism) than with fundamental doctrines. The law of consecration, on the other hand, speaks directly to those issues. Basically, consecration trumps Section 134.

  12. Adam Greenwood on July 11, 2007 at 3:19 pm

    JKC,

    I think de-canonizing 134 isn’t the right approach. I think the real disagreement between Cowdery and Joseph Smith was whether property rules and capitalism were to be just formal rules within which people voluntarily could conduct experiments into other types of behavior, or whether those rules were actually normative for our private behavior. I don’t think 134 addresses this issue.

  13. Nate Oman on July 11, 2007 at 3:34 pm

    One thing to realize is that at the time when Cowdrey was studying law, the so called evidence theory of the common law was still quite common. On this understanding (which is articulated by Blackstone) common law decisions are not law. They are evidence of law. The law itself is a product of natural reason. Hence, when Oliver talks about the law of property it is anachronistic to read into his statements our contemporary legal positivism with its strict conceptual seperation between law and morals.

  14. Talon on July 12, 2007 at 12:01 pm

    Interesting post Nate. I had just happened to read the wikipedia entry for Allodial Title earlier this week, so this post seemed timely to me.

    The wiki post is quite interesting, and I think adds to the discussion here. Oliver appears to think that he had allodial title to his property simply because he owned it, but in reality he did not. There is little, if any, allodial title held land anywhere in the world. “Allodial title is inalienable, in that it cannot be taken by any operation of law for any reason whatsoever.” Since almost all real property is subject to property taxes, eminent domain, etc., it is not in the true sense allodial title, even if you own the property mortgage free.

    So Oliver’s concerns should really have been made on the basis of fee simple ownership v. feudal system, rather than allodial title v. feudal system. But then again, he was an untrained lawyer, so maybe he just didn’t know what he was talking about.

    http://en.wikipedia.org/wiki/Allodial_title

  15. Nate Oman on July 13, 2007 at 5:18 pm

    Talon: This conception of allodial property sounds rather like one of the many kooky “legal” theories that get cooked up by tax protesters. (Who incidentally seem to have taken over the wikipedia article.) Thompson on Real Property (a standard legal reference on the subject) says, “While the word ‘allodial’ means free from tenure, yet it does not imply exemption from the state’s powers of taxation, of eminent domain and of escheat over lands within its borders.” (s. 39 1980 ed.)

    As between wikipedia and Thompson, I’ll go with Thompson.

  16. dkl on July 16, 2007 at 5:51 pm

    I never cease to be amazed by your ability to make fascinating, informative, and lucid insights about otherwise ignored (and often obscure) points of legal history. Very interesting post.

WELCOME

Times and Seasons is a place to gather and discuss ideas of interest to faithful Latter-day Saints.