tag:blogger.com,1999:blog-4900303239154048192.post8541156424750025586..comments2024-03-06T06:34:42.881-05:00Comments on EconoSpeak: More On Owning Unowned LandUnknownnoreply@blogger.comBlogger5125tag:blogger.com,1999:blog-4900303239154048192.post-91486877711274699972014-04-23T23:28:01.369-04:002014-04-23T23:28:01.369-04:00In the northeastern states there are a lot of foun...In the northeastern states there are a lot of founding stories about Europeans buying or otherwise obtaining land rights from the natives. For example, the right to settle the town of Concord, MA was supposedly purchased from a local tribe. Manhattan, legend has it, was purchased by Peter Minuet on behalf of the Dutch company backing the colony. I get the impression that a number of these stories were, to use a modern term, retconned into the origin story in the 19th century to legitimize the then current ownership, especially as by that time the original tribes were vestigial at best.<br /><br />(Hawaiian land ownership is a better documented case as the Hawaiian aristocracy had their own system of land ownership and allowed no commons. You can sometimes find old boundary stones in the highlands defining sectors of land down to the coast. In general, ambitious New Englanders, for the most part, married into the local aristocracy and took title that way.)Kaleberghttps://www.blogger.com/profile/05283840743310507878noreply@blogger.comtag:blogger.com,1999:blog-4900303239154048192.post-14136476546283630672014-04-22T00:26:39.997-04:002014-04-22T00:26:39.997-04:00Well, Bruce, I do not know this book and am not re...Well, Bruce, I do not know this book and am not really an expert on this, but will note two points based on my understanding of this.<br /><br />1) It is my impression that the Roman aspects came from the French, even if there was some sort of 13th century codification/agreement. This mixing of Roman and Viking elements happened with the Normans, and in fact the Domesday Book was a manifestation of Roman Law influence.<br /><br />2) The precise matter of unowned land was not that much of an issue, although there were commons. Most land in Europe, particularly the areas once ruled by Rome, were more or less settled with the land largely chopped up and identified as belonging in some sense or other to this or that party or group. There simply was no, or very little, seriously unowned land, so that the question of whether or not the emperor or somebody else owned it was not a big deal, in contrast with America later. However, these various preexisting arrangements in Roman Europe were in theory backed up by the emperor and his authority regarding the land and the law as some sort of ultimate power, even if he did not hand out lands initially, although eventually Roman emperors would do that for their favorites, the later dukes and other notables.rosserjb@jmu.eduhttps://www.blogger.com/profile/09300046915843554101noreply@blogger.comtag:blogger.com,1999:blog-4900303239154048192.post-35044665701108141372014-04-21T15:55:26.129-04:002014-04-21T15:55:26.129-04:00Barkley just ran across a work on Maitland that I ...Barkley just ran across a work on Maitland that I had never seen before that seems to go right to this point:<br />F.W. Maitland and the Making of the Modern World by Alan MacFarlane<br /><br />http://www.alanmacfarlane.com/TEXTS/Maitland_final.pdf<br />The PDF runs 102 pages with bibilography and is more a 'monograph' than a book as such.<br /><br />I'll be reading it with interest. But my take based on previous readings in Maitland is that there never was any Reception of Roman Civil Law in the King's Courts and so in the ones that governed land tenure. There was such in the Courts of Equity which originally fell under the authority of the Chancellor. But what you did have in the course of the 13th century was an adoption of the METHODS and certain underlying PRINCIPALS of Roman Law that were then grafted onto a complex multi-layered system ultimately rooted in Germanic and Scandinavian Law (for the Normans and their land law was the latter and not that of France). Another compatible way of seeing this process was that of Medieval Scholastism imposing a two-valued true/false either/or logic on a system that had a spectrum of rights and more to the point uses over land that just didn't break down that neatly. Until 13th century lawyers unsheathed their swords and did the slicing/logic chopping. At a stroke English Land Law BECAME 'Feudal' and so largely congruent with a Continental system that (in some formulations) simply derived all title from the Emperor. But even there I would dispute that as a misread of the situation inside Italy as represented by the bounds of the pre-Caesar Republic. And even outside it. It would be hard to identify some time in Roman history where land titles were simply wiped out in favor of the Emperor on more than a strictly local basis.<br /><br />(And Social Security just started as a (rather odd) hobby in my post academic days as a building department bureaucrat back in 1997. No link at all.)Bruce Webbhttps://www.blogger.com/profile/13222670342780912788noreply@blogger.comtag:blogger.com,1999:blog-4900303239154048192.post-2610423123952158142014-04-20T19:27:31.802-04:002014-04-20T19:27:31.802-04:00Interesting, Bruce. And this led to Social Securi...Interesting, Bruce. And this led to Social Security? :-).<br /><br />In any case, I suspect that the Roman Law precedent, which seems in fact to be the real underpinning of all European law, despite the tale that English common law is its own thing, separate but equal, is that the emperor had this primordial ownership right that he could use to grant lands to those whom he favored, and certainly many of them did that, with many aristocratic titles and lands dating back that far, particularly dukedoms in areas ruled by Rome, with Dux being originally a Roman military position. I gather you know far more than I do about William the Conqueror's views and how those may have differed with the pre-existing Anglo-Saxon law, which was probably heavily influenced by the Vikings.<br /><br />The most famous of historic commmons in the US is the Boston Commons, which, in effect became the property of the City of Boston eventually, although with some peculiar and idiosyncratic rights and traditions associated with it. I know that at least until recently, and maybe still, it is legal to graze one's cow there, and it used to be one of those pranks of Harvard students to get a cow or some cattle and haul it/them down to the Boston Commons in the dead of night to graze them, but this may have since been outlawed in more recent years.<br /><br />rosserjb@jmu.eduhttps://www.blogger.com/profile/09300046915843554101noreply@blogger.comtag:blogger.com,1999:blog-4900303239154048192.post-25577438441312970052014-04-20T18:38:51.029-04:002014-04-20T18:38:51.029-04:00Hi Barkley. As it happens this was one of my foci ...Hi Barkley. As it happens this was one of my foci back in the day when I was an honest to God budding academic in UC Berkeley's History PhD program.<br /><br />Let's just say the whole question is complicated and to the degree it is explicable at all is due to the efforts of the lawyers in the reign of England's Edward II. Which is laid out in a very famous book (for its genre) short titled Pollack and Maitland 'History of English Law'<br /><br />perhaps the most accurate explanation of the basis of English and so American land law is "elephants all the way down". But in around the 13th century English lawyers managed to regularized thingies, at least conceptually by a bastard mix of Roman and Feudal Law that concluded that every acre had to have an owner (in the Roman sense) and that in almost all cases that title derived from one or another grant by the King who in one formulation gained such by Rigth of Conquest as heir of William the Conqueror at Hastings in 1066.<br /><br />As such the King's lawyers managed to conclude that ANY grant of the rights to commons was subsequent to and subordinate to some sort of fee simple ultimately residing with the King. Convenient enough since the King was paying their salaries.<br /><br />But the historical evidence is clear that William the Conqueror did not see any such Right of Conquest and that the who,e structure of the 1086 Land Survey known then and now as Domesday Book was totally incompatible with the views of his at hat point remote Plantangenet descendants.<br /><br />Still the whole Right of Conquest schtick stuck leading to various folk claiming this or another land in America or Africa or Australasia as property of the relevant King or Queen and so subject to Land Grants from this newfound 'patrimony'. That subsequent sub-grantees in 'New England' chose to treat certain parts of their grants as 'commons' can only at a stretch be linked t ideas that remaining 'commons' in England actually were some sort of ownership (as compared to grant of use). Legally that idea had been stamped out before the Americas were 'discovered'<br /><br />In fact I wrote a graduate paper called 'Why Kill the Lawyers' that tried to explain why lawyers were the prime target of the English Peasant's Revolt of 1381 rather than the Lords' stewards and bailies as such. And suggested it was a reaction to the extinguishment of legal rights to the commons by lawyers of two or three generations prior. And so centuries before the <br />Public Lands Act that in the U.S undergirds much of relevant land law here. (interestingly passed under the Articles of Confederation and simply absorbed by the system established by the Constitution)Bruce Webbhttps://www.blogger.com/profile/13222670342780912788noreply@blogger.com