By Kyle Roberts
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.
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:
- subject to the right of the King to require servitude from the property;
- subject to the right of the King to repossess the property;
- subject to the right of the King to inherit the property; and
- 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.
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.
ALLODIUM, n. [Ger. origin; al all, and ohd possession, property. It means, therefore, entirely one's property.]
- 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.
- 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 :
- Absolute property in land, wholly irrespective of any superior Lord, and without any
duty of rendering rent or service.
- 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 person who 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.
Kyle Roberts is a small business owner who has committed his life to the cause of freedom. He is dedicated to recreating strong local self-government in his community by creating, and helping others create, institutions that create and preserve freedom.
He teaches a four-part lecture series on the Original Understanding of the Constitution for free to the community.
Kyle and his wife Kim own and operate Prudent Living Food Storage. They live in Spanish Fork, Utah with their two children.