Thank you, Carol, for having me at this outstanding conference on private property rights in the Albany area today. My topic to wind up your meeting today is “Social Property, the New Feudalism.” I’d like to talk a little bit about where the idea of feudalism came from and how those in the environmental movement and in government are working very hard today to resurrect that concept for their own ends.
Feudalism is a long-discarded system of legal principles defining the relation of human beings to land. The system was known for some 600 years in England. In the United States, curious remnants of it could be found right here in the Hudson Valley as late as 1845.
The name of feudalism long evoked thoughts of knights on horseback, damsels in distress, barbaric invaders, tumultuous throngs, religious festivals and the often doleful, servile and short existence of the manor serf.
The old feudalism is long gone. It’s departure probably produced one of the feeblest outbursts of lamentation you ever heard upon the passage of a major social, political, economic and legal system.
Today, however, feudalism is coming back in a different guise. A growing body of legal theorists, allied with activist organizations and congenial political leaders, has been working very hard to replace the long-cherished concept of freehold property and land with the old feudal concept of social property. The essence of that theory is the contention that property and land cannot be owned by anyone. It can merely be held, on a temporary basis, subject to the overriding views of society. The ancient maxim, sic utere tuo ut alienum non laedas, “use your own so as not to injure that of another,” is now held to be insufficient as a maxim for the proper use of land. Under the new feudalism, land must be used as society prescribes, or, at the very least, in ways not objectionable to society.
The replacement of freehold property with social property would necessarily have great ramifications for our legal, political and economic systems, all founded as they are in the existence of a widespread distribution of freehold property among independent owners. It’s not, however, inevitable, despite the massive support generated for the idea in intellectual, foundation, government and environmental circles.
To understand the new feudalism it is necessary to understand a little bit about basic reasons for the old feudalism.
The various feudal systems in western Europe were actually the first, but they are all founded upon the need for the protection of life and property against recurrent invasions of outlanders, barbarians or greedy foreign princes, particularly in the period following the breakdown of the Holy Roman Empire. In particular, the effective use of the armed cavalry by the Saracens against Charles Martel, the Frankish king, made it necessary for every prince to provide himself with similar forces. Hence many princes confiscated church and other lands to bestow them upon vassals pledged to their lord’s defense.
Under the system promoted by William the Conqueror, who gained the English throne in 1066, all land was to belong to the king as sovereign. The king granted a fief of land to the tenants-in-chief, nobles who provided support for the king’s defense or adventures. Those tenants-in-chief in turn made further grants to lesser nobles.
Small holders were compelled by force or fear of force used against them to cede their rights in lands to the local noble, who in turn promised to protect them. They continued to work the land in their accustomed manner, providing labor and services to the lord as required. Under this feudal system, no one save the king himself, and then only in his capacity as sovereign, actually owned land in fee simple. Land holding was actually integrated into an intricate system of mutual protection and public administration. Public and private law with respect to land became one.
Every landholder, with but a few exceptions, owed certain duties to the feudal lord and every feudal lord provided certain benefits to his vassals. Feudalism, thus based on personal duties and homage of vassal to lord, strongly discouraged alienability of land. There could be no assurance that the person into whose possession the land came would be able and willing to perform the required services to the overlord.
Land, then, was a resource, not a commodity. The feudal system guaranteed that this resource would be guaranteed to meeting the overriding needs of the feudal society. Property was not individual, but social. Individuals were users, as always, but they lacked the right to use, convey, and exclude as they saw fit.
The feudal system had its virtues, especially in reference to the troubled age in which it arose. It promised, and in England it provided, for perhaps three centuries, protection, order, and social stability. It frustrated and discouraged trade, commerce, mobility and individual freedom. By creating a hierarchical economic, military and political order under the king, feudalism invited the abuses associated with centralized power and was, in turn, subject to the disintegrating forces that inevitably undermine centralized systems. The system was inflexible and in the face of changing circumstances and, of course, technology changes such as the longbow and gun powder which made armed cavalry obsolete, removing the military base that had given rise to the system, feudalism declined.
As feudalism decayed in England, many landowners began to realize that they were benefiting very little from the protection of their supposed lord. All that remained of feudalism was a host of nagging and onerous duties. It was said that, “Nothing was left but ceremonies and grievances.” With the civil war in the Commonwealth in the seventeenth century, the future of these feudal burdens became uncertain. When the monarchy was restored in 1660, the King’s tenants-in-chief seized upon the opportunity to destroy the feudal system. Parliament abolished all but a few ceremonial relics of the feudal system. After that year, the Germanic feudal theory of social property — divided ownership, feudal duties, restraints in conveyance, and a stable social order — collapsed.
The Roman dominium, with its separation of private law and public law, an exaltation of individual rights above public duties, came back into favor. Land ownership, thereafter, carried no positive duties. Such positive duties as might be considered inherent in the conception of ownership, wrote the historian Hargraves, were left strictly to the sphere of morals; the law knew them not.
Here in America, practices of feudal duties have been virtually unknown. The first great landowners of this country, the William Penns and the Lord Calverts were not really feudal lords. They were, instead, commercial landowners with grants from the king.
In the last part of the Eighteenth Century, the philosopher John Locke, the legal theorist William Blackstone, and the Economist Adam Smith, almost at the same time, over a period of ninety years, developed a whole new paradigm for land ownership and individual freedom based on competitive free enterprise, a wide distribution of private property owners and the security of those rights under the law. In this intellectual climate, the founders of the United States of America were bred.
These ideas were their ideas. With the possible exception of Benjamin Franklin, the founding fathers accepted without question the proposition that private freehold property was essential to individual liberty and to the success of a republican form of government. George Mason of Virginia authored a famous statement on the subject which found its way into the early constitutions of numerous states. It read as follows:
“All men are born equally free and independent. They have certain inherent rights, among which are those which have been joined in defending life and liberty, of acquiring and protecting property, and the pursuit of happiness.”
Those were the views of John Adams, Thomas Jefferson, James Madison and perhaps the great majority, if not all, of those who crafted the legal documents by which this country was founded.
The rule of freehold property has certain limitations. It has limitations of nuisance, you can’t use your property so that you injure that of another, and it has a limitation in that property can be taken for public use provided that just compensation in money is paid to the private property owner. But even with these limitations, our freehold property doctrine is far, far removed from the doctrine that the land belongs not to individuals but to the society as a whole, and that the landowner may use his land only in ways that promote the good of society or, in the very least, do not merit specific destruction to society. That’s the theory of social property, abandoned several centuries ago as the old feudalism decayed and collapsed. Now the same theory is making a comeback in the form of the new feudalism.
The story of how this came about begins probably in the 1930’s but it came to a great fruition in the 1970’s. In the 1970’s we saw legal articles expanding the power of regulation to areas of critical state concern, to wetlands, endangered species, coastlines, and an expansion of the zoning power to limit the actions of individuals. We saw ingenious new legal doctrines developed, the public trust doctrine, the natural state preservation doctrine and even the idea, never actually litigated, of rights inherent in natural objects, which can be protected by a self-appointed guardian, in the courts.
The pendulum began to swing back in 1974. As Carol mentioned, we had a great national battle over what was called the Udall-Jackson National Land-Use Act. This was a bill which gave to each state some money and a host of instructions about how the state was to plan and control the use of its land by its citizens. President Nixon enthusiastically signed on to this through his Secretary of Interior Rogers Morton and it seemed like there was a tremendous juggernaut to drive this bill through Congress—prominent leaders of the Democratic party, which controlled Congress, a President of the Republican party, and his cabinet officer in the executive branch. Much to the surprise and dismay, if not outright horror, of the environmental movement, on a day in early 1974 the U.S. House of Representatives voted 211 to 204 to scrap the National Land-Use Act. It was sort of a shock heard round the world. In fact, within a year, Mo Udall, the key House sponsor called a news conference to say, “Well, it was a great try. But I guess I won’t try anymore. I’ll go on to something else.”
In the 80’s, the courts began to turn around to our side. There were four court cases beginning in 1987 and ending in 1994 the names of which you are probably familiar with: First English, Nollan, Lucas, and Dolan v. Tigard. Each of these cases established a little more purchase to the friends of freehold property ownership and were roundly lamented by the environmental movement.
Since 1994, we have seen in more than the majority of states movements in legislatures to enact “takings” compensation law. A typical takings compensation law says that whenever the regulation destroys so much of the value of the property, you can demand that the government compensate you for your loss or, in the version that I prefer, you can demand that the government take your property and pay its full value as determined in court by a jury. Several states have actually passed such legislation and there are many more that are considering it and hopefully will pass it in the near future.
Not surprisingly, this movement in the courts and in the legislatures has produced a tremendous counterattack from environmentalists. At about the time of the First English case, one of the first counterattacks came out in 1987, authored by the National Wildlife Federation. At their annual meeting in Quebec City, the head of that organization proposed a new constitutional amendment. It would read like this:
“Each person has the right to clean water, pure air and productive soils and the conservation of the natural, scenic, historic, recreational, aesthetic and economic value of America’s natural resources. There shall be no entitlement, public or private, competent to impair these rights. It is the responsibility of the United States and the several States as public trustees to safeguard them for the present and for the benefit of posterity.”
After about a year of agitation and petition signing, the National Wildlife Federation apparently abandoned the whole idea.
Only last month, I read in the local newspaper that a similar version has now been generated by the Sierra Club and other organizations. Their version reads as follows:
“The natural resources of the nation are the heritage of present and future generations. The right of each person to clean and healthful air and water and the protection of the other natural resources of the nation shall not be infringed upon by any person.”
The lawyers in the audience will recognize immediately that either of these constitutional amendments would afford tremendous opportunities for creating litigation to stop any person — any landowner, any corporation, any business — from doing virtually anything that could in any way be construed to affect the environment.
As Michael told you a few minutes ago, environmentalists believe that all nature is inextricably intertwined and that the mere flapping of a butterfly’s wings in one place can produce catastrophic consequences somewhere else. Therefore every action is fair game. No action by a landowner is too trivial to escape the attention of those who wish to put the State in control of his land.
Interestingly, you might compare those two amendments, as proposed, with Article I, Section 6 of the late Soviet Constitution, which says,
“The land is State property. That is, it belongs to the whole people.”
Well, I maintain that the theories associated with the old feudalism are attempting a comeback. A growing body of lawyers and theorists allied with well-funded action organizations, political leaders, want to replace the concept of freehold property with its polar opposite, the concept of social property. Under that ancient concept all rights in land are not owned by free individuals but are merely held at the sufferance of some superior. In this appearance of the medieval monarch, the modern state, in some cases, national government, has been nominated to be his successor. The consequences of this are a radical step backward, concerning not only the use of land but also the basic concept of individual liberty and a republican form of government, both rooted in the assumption of widespread freehold private property ownership.
The old feudalism was not without some virtues. It meant military security in an age of invasion and brigandage, it curbed economic fluctuations by preventing alienability of the land. It was a strong force for social stability and well-defined relationships between classes.
The problem with the old feudalism was it stifled individual liberty, productivity and self-government.
Having paid this modest tribute to the old feudalism, it’s time to swing shut the creaky door of the tomb to which it was interred. It served our forefathers many, many generations ago in its day, and that day is happily past. To meet the problems of today, those who believe in freehold property must be ever vigilant for the human rights of private property ownership. If they do not, they may well find themselves overrun by the theories of those who wish to reinstate and enthrone a social, economic, political and legal order which was tried for half a millennium and found wanting over three centuries ago.
Let me close my remarks on a personal note. In 1765, my ancestor Thomas McClaughry and his wife Sarah and four sons arrived in Salem, New York. They were Scotch-Irish pioneers from County Longford who came to this great new land seeking opportunity and freedom. They bought land from the Clark Patent. They paid, no doubt on time, for many years to acquire the full title. They cleared that land and made it productive. They paid their taxes and supported their local community. All four of Thomas McClaughry’s sons fought in the Revolution in the new Republic. They are long since gone from Washington County, New York.
I’m confident that if, like Rip Van Winkle, Thomas and Sarah McClaughry and their four sons came to life today, they’d be here with you and me standing boldly in defense of their land and their liberty. Thank you very much.
| Back to: | |||
|
|
|
|