🚀 go-pugleaf

"Erik A. Mattila" wrote:
> 
> Seppo Renfors wrote:
> 
> > You are arguing against a much higher authority than me, you know.
> > That of the full bench of the High Court of Australia - and a 10 year
> > deliberation, study and argument on the subject. It includes raking
> > through all ancient cases with a fine tooth comb, from around the
> > world, mainly the "British" world that is.
> 
> I think that's probably true, Seppo.  I just believe that the topic
> needs to consider human land tenure more broadly to make any sense.
> Otherwise you are just considering a specific instance and projecting it
> over the whole.

I'm not arguing specific instances - I have explained the principles
involved under British Law.
> 
> >>[Seppo]
> >>
> >>>>The government can do whatever it likes with that land, as it owns the
> >>>>land. No other person actually OWNS any land. The Government, at its
> >>>>pleasure, can allow other people, corporations and entities to occupy
> >>>>a piece of land -conditionally. The government may lease it, allow
> >>>>mining on it or sell a freehold title to it -subject to rates and
> >>>>taxes etc. All these other titles sit on top of that radical title -
> >>>>at the pleasure of the Government.
> >>>
> >>Just to get the terminology right, what you are talking about
> >>originally, in Roman land tenure, is called "dominium directum" - "the
> >>ultimate right to the soil." In Rome, the dominium directum was in the
> >>Emporer.  Today this 'ultimate right' is translated into "eminent
> >>domain." I don't think it's correct to claim that no person can actually
> >>own land because of this, simply because that is all land ownership as
> >>we know it intended. In other words, you are saying that the meaning of
> >>"to own land" is something other than what it actually is under any
> >>system of property in land.
> 
> > That stuff may be interesting, but irrelevant.
> 
> How so?  "Lex" is an amalgamation of concepts, statutes, case law,
> culture and history.  If you need to understand the concept of "immenent
> domain", or even "radical title," you need to understand its wellspring
> in Roman law, "dominium directum."
> 
> "This allodial property no subject in England has, it being a received,
> and now undeniable, principle in the law, that all the lands in England
> are holden mediately or immediately of the king. The king therefore only
> hath absolutum et directum dominium; but all subject's lands are in the
> nature of feudum or fee; whether derived to them by descent from their
> ancestors, or purchased for a valuable confideration; for they cannot
> come to any man by either of those ways, unless accompanied with those
> feodal clogs, which were laid upon the first feudatory when it was
> originally granted. A subject therefore hath only the usufruct, and not
> he absolute property of the soil; or, as sir Edward Coke expersses it,
> he hath dominium utile, but not dominium directum. And hence it is that,
> in the most solemn acts of law, we express the strongest and highest
> estate, that any subject can have, by these words; "he is seised
> "thereof in his demesne, as of fee.� It is a man's demensne, dominicum,
> or property, since it belongs to him and his heirs for ever:yet this
> dominicum, property, or demesne, is ftrictly not abfolute or allodial,
> but qualified or feodal: it is his demesne, as of fee; that is, it is
> not purely and simply his own, since it is held of a superior lord, in
> whom the ultimate property resides." [Blackstone's  Comments on the Laws
> of England,  Book the Second - Chapter the Seventh: Of Freehold States,
> Of Inheritance]
> http://www.yale.edu/lawweb/avalon/blackstone/bk2ch7.htm

That says no more than I have already said.
> 
> > "Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz.
> > First, Those Statutes which were made before Time of Memory; and,
> > Secondly, Those Statutes which were made within or since Time of
> > Memory; wherein observe, That according to a juridical Account and
> > legal Signification, Time within Memory is the Time of Limitation in a
> > Writ of Right; which by the Statute of Westminster 1. cap. 38. was
> > settled, and reduced to the Beginning of the Reign of King Richard I
> > or Ex prima Coronatione Regis Richardi Primi, who began his Reign the
> > 6th of July 1189, and was crown'd the 3d of September following: So
> > that whatsoever was before that Time, is before Time of Memory; and
> > what is since that Time, is, in a legal Sense, said to be within or
> > since the Time of Memory."
> 
> But we're not talking about statute law per se.  We're talking about
> legal concepts that you seem to be holding everyone accountable to,
> regardless of cultural and historical circumstances.  

A Law is uniform that applies to all people of a nation. The relevant
"historical" aspects are the legal precedents set. I only speak about
BRITISH law, as that is what I know and that same law applies to
Canada, at least the "historical" aspects of the Common Law.


[..]
> 
> > "And therefore it is, that those Statutes or Acts of Parliament that
> > were made before the Beginning of the Reign of King Richard I and have
> > not since been repealed or altered, either by contrary Usage, or by
> > subsequent Acts of Parliament, are now accounted Part of the Lex non
> > Scripta, being as it were incorporated thereinto, and become a Part of
> > the Common Law; and in Truth, such Statutes are not now pleadable as
> > Acts of Parliament, (because what is before Time of Memory is supposed
> > without a Beginning, or at least such a Beginning as the Law takes
> > Notice of) but they obtain their Strength by meer immemorial Usage or
> > Custom" - (Matthew Hale 1713)
> >
> > That is to say, common laws (Lex non Scripta) is as it has evolved
> > over the years and follows precedents made. So you see that Roman laws
> > are irrelevant.
> 
> But where in the opus of Hale's wisdom does he argue against the
> legitimacy of Lex Scripta?  He's describing the unwritten law of the
> Saxons who "invaded" England.  You might note that these people were
> foederati, "barbarian" Roman mercenaries who likely litigated their
> disputes via a mix of aboriginal and Roman law.

Note he is speaking of a set time, from whence Statute Laws apply.
This is a retrospective look, and a guide from then on. The date is
set at 6th of July 1189. For common law it is "their Strength by meer
immemorial Usage or Custom". That is to say by precedent, as it has
evolved to current date.

It has nothing whatever to do with Romans, "barbarian", Saxons who
"invaded" England or anyone, or thing, else. It puts a lid on how far
back you CAN go arguing, so that "the law as of 1102 is the applicable
law..." would have been get thrown out. Of course all of that is now
rather irrelevant as most statutes have ben amended and re-amended
many times over. New laws introduced and old thrown out. But Common
Law still stands.


[..]

> >
> >>I have yet to find one example that resembles Roman tenure in
> >>precolumbian America.  Even in elaborate and regulated systems such as
> >>the Calpuyec in Tenochitlan, the basic value of each member's
> >>inalienable right to the soil is upheld - even slaves were provided
> >>their ejidos.  It is for this reason that I disagree with your statment
> >>that "ALL titles, and ALL rights, exist at the mercy of the government."
> >>  By definition, an "inalienable right" would not be so constrained.
> 
> > Generally speaking, Wade is right.
> 
> Only in the context that you are prozlytizing - that British law is some
> sort of universal legal truth.  An 'inalienable' right cannot be
> extinguished by a government.  

There is no such animal!

> I'll admit it requires a conceptual jump
> to understand this, since essentially Roman property concepts have
> become so naturalized in our cultural thinking.  That it would be
> +unthinkable+ for a Dogon magistrate to deny access to the soil to a
> member of his/her charge requires, at least, a considered leap across
> hermeneutic boundaries.

If you want a quantum jump, then I COULD argue that a citizen is OWNED
by the State. But that I'm not about to do. It is pointless to go
haring off into concepts that don't apply at all in any case or are
mere abstract concepts. Such amounts to no more mental masturbation
anyway.

[..]

The rest amounted to either USA related or abstract concepts. My
purpose of intervening was merely to some reality back into the
argument regarding Canadian Native Title claims. As the Law applies.

I have no wish to debate US situation, as I have repeatedly said, I
don't know enough about to debate. Nor am I interested in getting
involved in abstract philosophical discussions - they don't really
belong to the group this is cross posted to anyway.

But thanks for those URL's on native maps. I have saved the URL's for
later use, they do look interesting from other aspects.



-- 

SIR -Philosopher Unauthorised
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