Talk:Allodial
I've tried to tidy this page up a little. Allodial land and "fee simple" are quite different concepts and arise in different situations, at least in English law. I am guessing that the two have merged in US law, because of the revolution. The difference is quite real in England, and since this is an international encyplopedia I thought it useful to make that distinction.
More help on this entry, particularly on what has happened in the US, would be useful.
Francis Davey 17:53, 31 Jul 2004 (UTC)
The two are distinct in the United States, as well, and there is no allodial ownership of property here. There were several attempts, after the Revolution, to pass laws casting the allodium upon tenants of freeholds (see, e.g., Thomas Jefferson), but I am not aware of a single instance where such a law was actually carried into effect, nor of any State where the allodium is held to belong, by law, to any other than the State itself.
--CDJones 12:51, 22 Nov 2004 (UTC)
"Allodial" being an adjective, the proper title of this entry is Allodial tenure, which draws attention to the fact that its natural place is as a subsection of Land tenure. It's all too easy to break apart entries into meaningless constituent fragments. This entry doesn't stand on its own, apart from its context in the very brief entry at Land tenure. I hesitate to add a "merge" tag. What do y'all think? --Wetman 17:14, 3 Jan 2005 (UTC)
I wrote most of the land tenure article, but since in England and Wales there is no allodial land it is meaningless to talk of "the allodium" and we do not in our law. I therefore did not know what to put. I am hoping someone who knows more about a system which does have allodial land or for which there is a meaningful notion of "allodium" can assist. Francis Davey 14:30, 6 Jan 2005 (UTC)
FD, I would say that your description is a description of the practice but not of the principle. This article being the technical sort, I think a better description would be, English Law recognises allods but there are no allods at the present time (or ever? though I wouldn't be surprised if some were created and later abolished, e.g. for the Church before the Statute of Mortmain).
The thing is, allods could be issued, and then the derived feudal concepts would flow through the common law and take actual effect. Since this has always been considered undesirable, and the powers that be had more say in the matter than in many places, none were ever created. This would be something of a quibble elsewhere on wikipedia, but I think not here.
Or is there some specific part of English law that actually prevents allods? I'm not thinking of attempts at entrenchment that say "thou shalt not create allods", but something that makes them inconsistent with the rest of the structure. The latter would be far harder to unravel than the former. P.M.Lawrence.
There is no means by which an allodh could be conveyed. A deed cannot be a deed without habendum et tenendum, and tenendum creates tenancy, not ownership. Setting that difficulty aside, none but the Crown would have an allodh to convey in any case. CDJones 08:33, 24 Feb 2005 (UTC)
Well, you have all lost me -- and I am an expert on English legal history, so perhaps we can help each other out a little. In particular I am stumped to know what on earth an "allod" is, I've never heard of it. Since I (amongst other things) read the Year Books in bed etc, I would have expected to run across the word.
To explain: in English law absolutely all land has a Lord. No land can be without a Lord. Historically if a Lord died without heirs he would be replaced (as Lord) by the next Lord up the chain of feudal tenure, at the top of which is the Monarch. The Monarch is therefore Lord of all the land in England. She does not "have" something called an "allod" to convey -- she cannot convey any part of her interest as supreme Lord to anyone else.
Since, axiomatically, no land can be without a Lord, there is no allodial land in England (or Wales).
The Monarch can enfeoff land, creating a feudal tenant-in-chief and that is, historically, how the Crown disposed of much of its land. Alternatively the Monarch can manufacture a fee simple state out of land it holds and then grant that to someone else. Since Quia Emptores subinfeudation has been impossible, and the Monarch no longer creates tenancies (as in tenure) out of her land, so that nowadays all land is ultimately: (1) demesne of the Crown; or (2) held of the Crown in Common Socage (probably the only surviving feudal tenure -- though I have niggling doubts about frankalmoin which was never abolished).
Don't confuse the system of tenure (which is now very simple with probably a single Lord of whom all land is either demesne or a tenancy in chief) with the system of estates -- such as fee simple, fee tail, which are carved out of the tenure. Estates are granted (and conveyed). The Monarch has quite a lot of land which is fee simple (there is an argument as to whether Buckingham Palace is or is not fee simple land). Since the idea of allodial land relates to tenure, not estates, it should not be spoken of with fee simple in a similar breath.
I am pretty sure that all Common Law countries outside England have drastically simplified this.
Does that help clarify things?
Francis Davey 22:12, 24 Feb 2005 (UTC)
1) The monarch is no one's feudatory; the Crown's land is owned outright, not held.
2) We're just bouncing around among languages, here. Allodium is to feudum, as allodh is to feodh, as allod (if P.M. Lawrence is correct) is to feud. If you don't mind taking Blackstone to bed, you can find the words (all except allod) in the footnotes in the second volume.
3) My understanding of Quia Emptores is, it forbade anyone else setting up subinfeudations; it did not touch the Crown's power to do so.
4) Estates are not "carved out of the tenure"; the tenure is an inseparable part of each estate. Since Quia Emptores, however, this doesn't mean as much as it once did. On the other side, I'm not sure it means anything to speak of estates in that which is owned outright.
5) I had thought, for some reason, that there were still some flavors of copyhold tenure floating around here and there.
6) You'd be surprised how much remains unsimplified. It's just taken as read, here, that the States stand in the Crown's stead.
CDJones 05:34, 25 Feb 2005 (UTC)