Were I to tell my neighbour that his land was not really his, he might pull a gun. But I would nonetheless be correct. My one and a half wooded hectares aren’t fully mine either though I hold the title free and clear.
What I and my neighbour do possess are certain rights to the land we like to think of as ours. We can sell the rights, or lease them to someone else, or bequeath them to our heirs. But we cannot do anything we please on the land itself. I am having some Amish around next week to raise me a man cave but before I could do that I had to get planning permission, install concrete footers at prescribed intervals and have an inspector approve them.
More importantly, my tenure is contingent. If I fail to pay the tax the state assesses on “my” acres, the state will take them back. Back? Yes back, because in the wonderfully archaic language of property law, the state is the “donor” or the “allodial owner”.
The state in my case is Maryland which inherited my and every other patch within its borders from the British Crown when the US won its independence. Before that they belonged to George III and his antecedents under a system dating back to the 12th Century. The colonists were the king’s subjects, and, as the jurist William Blackstone put it in 1765, “the king…hath absolutum et directum dominum” over his subjects’ lands in America, stolen though they were from the indigenes.
Land was an obsession for George Washington long before he became a Founding Father. He acquired tens of thousands of hectares, all of which ultimately belonged to the Crown. His lust for land in today’s western Pennsylvania and Ohio, territory then claimed by France, helped trigger the Seven Years War, the first truly global conflict fought from North America through Europe to India and the Philippines. After the war, the British, victorious but exhausted, called a halt to their colonists’ westward expansion and asked them to ante up for defending lands already acquired, precipitating America’s UDI and the transfer of ownership.
I hold my land in “free socage” or “fee simple”. Fee derives from the word feud, as in feudalism, which in turn derives from the Latin foedus, meaning pact or agreement. In feudal England, the king ceded his vassals land rights in return for their agreeing to support him financially, administratively and militarily. Said vassals would use that land to enter into “feuds” with their vassals and so on down the food chain. Today, thanks in no small part to G. Washington, not to mention Edward I and the statute Quia Emptores Terrarum of 1290, I have a happy “feud” with Maryland.
The state authorities could make it unhappy. They could decide they need my land for something else. It would not even have to be a public use. Under the Supreme Court’s 2005 ruling in Kelo vs City of New London, they could decree that the public interest would be best served by handing my plot to a private developer. Under unanimously decided Hawaii Housing Authority vs. Midkiff (1984), they could theoretically do it in the name of land reform.
They would have to pay compensation, of course, but there are plenty of steps they could take to destroy the value of my property beforehand through zoning or licensing construction of a pollution-spewing chemical plant next door. My neighbours and I would presumably fight like hell in the courts and through the ballot box. If we didn’t move away first. But none of this, I trust, is going to happen.
The people of Maryland, the allodial owners of my property, are too sensible for that.