Jus Commune: Feudalism in the Modern World

The question of eminent domain has been raised by the Supreme Court in the Kelo decision. Here is some commentary by Macrobius:

Jefferson felt that the writings and strategy of Coke (who in the early 17th century wrote the standard 4 vol. commentary ("Institutes") on Littleton's 15th century work on feudal Tenures) was key to opposing the absolutist claims of the Stuarts. His affection for Coke dated from his training as a law clerk, in which the method was to read Coke closely and apply his dicta daily to Virginia land disputes. If we remember Jefferson's agrarian leanings and predelictions a consistent picture emerges--what was important to [this one] Founder was not the constitution, but Common Law as applied to his country (Virginia).

The political strategy of the Revolution, from a propaganda standpoint, seems to be to take the current situation and map it onto the struggle against the Stuarts. This is brilliant, because it keeps Massachussetts [we hate kings anyway] obviously, but most importantly it gives Virginia a reason to stay in the game. As Zane says, Virginia should have been opposed to Parliamentary incursion, and not the King. Many Virginians were Torys and approved George III's "Tory Ascendancy" policy (a term that lived on in the South and Canada). Jefferson's master stroke is to tie his personal antipathy to the Hanoverians ("George Guelph" in the first draft of the declaration), to fear for property rights. This makes Virginia and Massachussetts allies in a "keep our rights and Common Law" Law-over-King struggle. Nevermind the king is halfway to Constitutional monarch and not in any real sense victimizing the colonies. Have we forgotten that Britain from 1688 to 1832 was a Protestant confessional state engaged in--far worse than witch trials--savage repression of Celts and Catholics?

It is quite an ugly picture, this Supreme Parliament. But of course the colonists in Massachussetts were onboard that program. Virginia, if unconfortable and inclined to tolerance, would support it in principle. So some other reason than "that country what ownz us violates natural rights and basically sucks" had to be found. Coke and the struggle against the Stuarts, transmigorified into two-minutes Hanoverian Hate does the job

Then it is critical that we understand: 1. what would the founding fathers have felt about feudal land tenure in the Republic 2. what are the salient issues at stake now? 3. How does this decision affect the status of land tenure today?

I have argued for centrality of "Land Tenure" (whence "Eminent Domain" and "Federal courts using Common Law" and similar notions hail)--incidentally in forming Jefferson's notion of "how to fight tyrrants" but also for other founding fathers. The year after the Constitution was ratified, Federalist James Wilson, soon to be on the Supreme Court though not Chief as he had hoped, gave a series of Lectures on Law--fully as authoritative as the Federalist Papers, only never read today and hardly available. But worth the read. Of feudal law he says, we no longer have to consider it applicable, as we can now prouldly say fuit servitudo (Fuit Ilium is the classical reference here). That is what the Revolution has done--ended that form of [white] slavery or the medieval form of serfdom, [not to mention the Catholicism that went with it].

I wonder if Jefferson and Wilson would have seen eye to eye. Nearly all the founding fathers were land speculators and not a few were shady ones. Perhaps there is a ray of hope yet for government by and for land developers. Developers of what, being the real issue of course. The Utilitarian metaphysics being the real demon here. And Bentham, like Bacon, was a lawyer.

Some more commentary:

"Sir John Dalrymple, author of a popular eighteenth-century essay on Feudal Property, is another example of a writer who considered feudalism praiseworthy, but denied that the Saxons practiced it. Saxon land tenure, he claimed, was allodial, and descents were free. The Germanic invaders of Britain had found more land than they could use and therefore felt under no constraint to accept feudal restrictions. The Saxon nobility was “allodial, personal, and honorary,” and was presided over by a virtually elective monarch." From Lamp of Experience.

So, we need a lawyer to tell us, is "eminent domain" (a feudal concept, non?) commensurate to the ideal of "allodial land holding"--and if the purpose of the revolution was to achieve the latter, how is that reconciled to subsequent use of the feudal concept? For the historians among us: Where and how did feudal land tenure like lords paramount, domains, much less eminent ones get back in the picture? And for the politicians: how is it that the South could be pro-Cavalier, Norman, and Feudal, yet join a Revolution on the basis of alloidal land vs. feudal? Or were there two Souths, one feudal, one free? A pretty historico-politico-legal puzzle.

What frame of rationality and justice should we use to interpret the Constitution?

Quotation from James Wilson.

Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.

The laws of God may be divided into the following species:

I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the "law eternal."

II. That law, which is made for angels and the spirits of the just made perfect. This may be called the "law celestial." This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: "In heaven his will is done."

III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.

IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects.

To understand his distinction of "Natural Law" and "Rational Law" you will need to read Hooker.

[This is] the statement of the person primarily responsible for convincing Pennsylvania, the first large state, to adopt the Constitution, explaining that constitution to law students the year after it was adopted. In other words, I belong to a community whose educated members have articulated what they believe in terms that they at least rationally understand. We have, if you like, a world view and a closed mind, though better words are due to Adams, Jefferson, Wilson and their kith and kin. [...] That others less worthy have gained control of the court subsequently and choose to maintain forms without understanding or with contempt and malice for Intent and Tradition is beside the point--Tradition of one's own community, when as reasonable and properly articulated as that of the Constitution of the United States, is not beyond criticism but certainly meets the prima facie criteria of rational discussion, for those who care to engage the Tradition on its own terms, that is to say, Reality and Law of their own Community.