Oliver Cowdrey has the distinction of being one of the few Mormon dissidents to make his stand against church authorities on the basis of obscure doctrines of real estate law. After the church was expelled from Jackson County, Missouri, Oliver was brought up before the Far West High Council for, among other things, selling his property in Jackson County. Oliver refused to attend the church court, writing:
Now sir the lands in our Country are allodial in the strictest construction of the term, and have not the least shadow of feudal tenours attached to them, consequently, they may be disposed of by deeds of conveyance without the consent or even approbation of a superior.
In the fullness of time, Oliver was excommunicated. Since then, Mormon historians have generally glossed over this jargon laden bit of Oliverâ€™s letter. Indeed, even Mormon law professors have found Oliverâ€™s use of legal jargon strange. Steven Smith, for example, has written:
I think it would be fair to say that on [this point] — that is, a dispute over property–Oliver’s position seems a bit bizarre. . . . In his response, Oliver got into a discussion of whether land in this country is “allodial” or subject to “feudal tenures.” He asserted the rights of property ownership under English and American law and also alluded to principles of religious liberty and church-state separation. Then from these assorted legal propositions he somehow drew the conclusion that the Church was acting wrongly or beyond its authority by giving direction in these matters. . . . Oliver asserted other grievances (including a complaint about what we might now describe as the circumstances surrounding the origins of polygamy), and I admit to being in sympathy with some of Oliver’s concerns. Even from a distance, though, I think we can say that on this specific issue of property, Oliver seemed confused. Why would he think that civil law governing property ownership would mean that a church cannot impose conditions or regulations on its members? Why would the fact that in this country property is allodial rather than feudal (whatever that means) preclude a church from giving direction to those who choose to belong to it, even in temporal affairs?
Much as I respect Steve Smith, however, I think that he got this one wrong. I think that the reference to allodial land and feudal tenures gets at the heart of how property gets conceptualized within Mormonism.
Feudal tenures refer to medieval doctrines in the common law of property by which the ownership of land created certain kinds of recipricol social obligations. The way in which one owned land defined ones place in the social system. Every person â€œheld their land ofâ€ someone else. A deed, for example, might specificy that Cedric held Blackacre in knights service of the Duke of Northumberland. What this meant was that Cedericâ€™s ownership of Blackacre created an obligation on his part of loyalty and service to the Duke of Northumberland. In turn, the Duke â€“ at least in theory â€“ had obligations to protect Cedric and provide him with justice in disputes with his neighbors. Legally speaking, these were not free-floating rights or obligations. They inhered in the concept of property itself. To own Blackacre meant to have a certain set of obligations in the community in which Blackacre was located.
By contrast, â€œallodial landâ€ refers to land free of any feudal tenures. In other words, it was property whose ownership was not formally tied to social obligation or social status. Rather, to own allodial land is to own it in fee simple absolute, which means that subject to the general laws governing all, one is the undisputed master within oneâ€™s property. In contrast to the feudal system, under an allodial system of land ownership, property performed a very different function. Rather than acting as a nexus of social obligation, property marked a boundary of social obligations. On the far side of my property line was public space where my actions were open to others, but once within my property I was in a private space where â€“ with few exceptions â€“ I could act free of social obligation so long as I did not cross the boundaries marked by anotherâ€™s property.
At the time of this dispute, Oliver was launching into his career as a lawyer. Like virtually all frontier attorneys, he had no formal training, but it is very likely that he studied St. George Tuckerâ€™s American edition of Blackstoneâ€™s Commentaries on the Laws of England, the leading legal textbook of the day. In chapter 4 of Book III, Blackstone provided an extensive discussion of â€œThe Feodal System.â€ In his footnotes, however, Tucker noted that, motivated by a â€œrepublican spiritâ€ the old feudal rules had been repealed by statute in America, and â€œ[i]t was expected that every trace of that system would have been abolished in this country when the republic was established.â€ In other words, the transformation from monarchy to republic, from tyranny to freedom transformed property from a site of social obligation to private freedom. (A generation earlier John Adamâ€™s had employed a similar dichotomy in his Dissertation on the Canon and Feudal Law, an extensive polemic against British policy in the form of a learned treatise on English law.)
The Mormons of Missouri did not try to reinstitute feudal tenures. They did, however, reject the view of property that Tucker (and Oliver) associated with â€œthe republican spirit.â€ First, they rejected the notion that property marked off a private, autonomous sphere. Rather, they insisted that one never owned any property in the sense of having an absolute moral right to its control. Only God owned property in this way. All of the rest of us held our property as a stewardship to him. In good Mormon fashion, of course, this abstract point was put into concrete form in the law of consecration, which insisted that everyone deed their property to the Bishop and receive in return a stewardship, which while ultimately taking the form of a deed in fee simple, carried with it obligations to the community that the community could enforce in its own courts. In short, Mormonism transformed property from a site of individual freedom into a site of social obligations. The vision of a man independent in his allodial castle was replaced with that of a saint holding a stewardship in the Kingdom of God. Oliverâ€™s protest, far from being a pedantic display of newly acquired jargon pointed toward a fundamental transformation that the Restoration had wrought.
In institutional terms, the law of consecration and stewardship of the 1830s was a noted failure. I see no reason, however, to suppose that this fact undermines the basic conceptual revolution in property wrought by the restoration. We still covenant to consecrate all that we possess back to the Lord, and we still insist that the world is the Lordâ€™s and all things that in it are. We are stewards. Unlike Russell and other progressives, I donâ€™t see that this necessarily suggests that rejection of free market capitalism, which has much to recommend it in practical and moral terms. It does suggest, however, that Latter-day Saints should be uncomfortable with absolutist appeals to property rights. It is not an allodial world in Godâ€™s eyes.