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Default Allodial vs. Feudal

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Keywords: status, Kelo v. New London, benefactor, beneficiary, taxation, eminent domain, police powers, escheat, common law, allodial, feudal, stare decisis, cestui que use

Allodial vs Feudal

The concepts allodial and feudal are distinct legal terms in that the former means to be free from the tenurial right of a lord; whereas, the latter depends upon the relationship to a lord or sovereign (US Legal, Inc., 2012). Furthermore, the term allodial signifies "all property" held via hereditary rights that are passed on from decedent-benefactor to heir-beneficiary (cestui que use or cestui que trust). Common law is based on precedent (e.g., stare decisis, to stand by things decided) rather than statutory laws, which are enacted by a legislature or other governing group. The Judicial power of the United States, for instance, is entrusted in one Supreme Court, whereas inferior Courts are ordained and established by the Legislative power (Congress) of the United States (U.S. Const. art. I, § 3). In view of this, inferior Courts must follow precedent i.e. to stand by things decided (stare decisis) by a higher court. In common law societies, most property ownership is held in "fee simple (i.e., absolute ownership of real property)." However, fee simple ownership is subject to four basic government powers:
  • Taxation.
  • Eminent domain.
  • Police powers.
  • Escheat.
First, taxation is revenue gained from taxes. Second, eminent domain is the Government right to annex private property for public use. Third, police powers are essentially reserved to the States and the People according to the United States Constitution--"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [italics added]" (U.S. Const. amend X). Fourth, escheat is the reversion of real property to a government body in the absence of an heir or a beneficiary (cestui que use). Eminent domain can be traced back to English Common Law. Saginor and McDonald (2009) explain that,

The power of eminent domain originates in English Common Law, and is known in the United Kingdom as compulsory purchase. The legal theory is that all land is held in allodial title by the sovereign on that land. Thus in English Common Law only the monarch held allodial title, gained through grant of another sovereign or through Right of Conquest. All others were tenants of the sovereign through their feudal vassalages (p. 4).
The Fifth Amendment of the US Constitution stipulates that "nor shall private property be taken for public use without just compensation." The terms "public use" and "just compensation" are checks on government eminent domain power for allodial title rest in the Sovereign. The principle of eminent domain stems from the "Saltpeter Case" in English Common Law. Eminent domain would later challenge the course of U.S. court decisions that culminated in the decision rendered by U.S. Supreme Court in the case of Kelo v. New London, 545 U.S. 2655 (2005); the decision maintains that municipalities may use the power of eminent domain to carry out an economic development that is wholly consistent with state statute (Saginor & McDonald, 2009).


Statutes are provisions of a Bill that has been raised from proposed legislation to law. Man act and operate in accordance with law, such as binding customs or practice of a community. Moreover, law is a rule of conduct or action prescribed to modify human behavior. The basic distinction between the terms allodial and feudal is that allodial land ownership, for instance, is not subject to rent or service to the tenurial rights of a Lord or acknowledgement to the Sovereign. However, feudal land ownership depends on the relationship to a Lord or the Sovereign. The relationship between vassal and Lord or the Sovereign exists via contract, in particular an adhesion contract. Essentially, allodial land ownership and feudal land ownership rests with a person’s Status or condition in the eyes of the law (are you a Sovereign or a vassal?). "The victory of the colonies in the American Revolution is considered to have converted allodial title from the king to the several states" (Saginor & McDonald, 2009, p. 4). This may explain why allodial title in many cases is reserved for governments. In Common Law governments most property ownership is held in fee simple, which subjects land ownership to government powers, one of which is eminent domain. It allows the Sovereign to seize private land for public use not without just compensation. The case of Kelo v. New London exemplifies such case that decided in favor of New London. This decision has its precedence in the Saltpeter Case, in which the case was decided in the King’s favor, but he had to compensate the owner for the taken saltpeter (potassium nitrate).

Pa Neter Ra (Ptah Hotep)
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Saginor, J., & McDonald, J. F. (2009). Eminent domain: A review of the issues. Journal of Real Estate Literature, 17(1), 3-43.

U.S. Const. amend. V.

U.S. Const. amend. X.

U.S. Const. art. I, § 3.

US Legal, Inc. (2012). Retrieved January 20, 2012, from US Legal.com Web site: http://definitions.uslegal.com/a/allodial/

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Last edited by Pa Neter Ra; at 03:56 AM..
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