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Property and Freedom: From Magna Carta to the Fourteenth Amendment
by Professor Bernard H. Siegan

Property rights are integral to the freedom and prosperity that Americans enjoy in the twenty-first century, although their centrality has often been disparaged and their long and esteemed historical pedigree doubted. Yet the provenance of these rights can be traced back to King John's acquiescence to Magna Carta in 1215. Early English property law that followed in its wake would greatly influence property law in the United States. In transmitting the English property rights tradition to American soil, the most important conduits were the commentaries written by Lord Edward Coke (1552-1634) and Sir William Blackstone (1723-1780), both of which were eagerly read in America in the colonial period, by the framers of our Constitution, and by their early successors both in politics and on the bench.

Scholars in recent years have tended to view property rights in our formative years — from the creation of our new nation to the early 1870s, shortly after the ratification of the Fourteenth Amendment — through the prism of our own era, which is much less enamored of the rights of property than were our forebears. Overlooked in the contemporary interpretation is the strong endorsement of property rights delivered in early America from the bench by judges throughout the state and federal courts. Professor Siegan seeks to correct this oversight by examining over one hundred property rights cases decided by the U.S. Supreme Court and state high courts in the period from 1790 to 1871. Exhuming these often neglected cases reveals that protecting property by requiring compensation when it was confiscated by governments or excessively regulated was an integral part of U.S. jurisprudence during this period. Siegan's exhaustive review of these early cases reveals the strong influence of English property rights theory and law, through the intermediaries of Coke and Blackstone, as well as the importance of property rights to our early jurists. Reconstructing this history should still criticism that judicial protection of private property is of recent vintage, promoted by activist justices seeking to enshrine their own proclivities.

Siegan begins his history of property rights with King John's reluctant acceptance of Magna Carta. Confirmed often by the English Parliament, Magna Carta is justly celebrated as terminating the despotic powers of government. John accepted Magna Carta to settle the revolt of the barons against his outrageous conduct. He agreed to restore the properties he had stolen and to remit the fines and amercements he had unjustly imposed. In Chapter 39, he promised never again to commit the reprehensible acts that caused the barons to revolt against him, a pledge that English-speaking nations have observed in their legal systems as a protection against government oppression. John's acceptance of restraint is the origin of the due process provision in our Constitution's Fifth and Fourteenth Amendments: that government must not deprive any person of life, liberty, or property without due process of law.

In the seventeenth and eighteenth centuries, Coke's and later Blackstone's commentaries were widely read and very influential, interpreting, explaining, and expounding the English laws of their times. Not only in England were these commentaries important, for they proved persuasive across the Atlantic as well. When the English settlers migrated to America, the English government assured them that they were entitled to the same privileges and immunities in their new land as they had enjoyed in England. These privileges and immunities largely embodied the common law. The English colonial authorities and later the Americans continued to abide by and generally apply the common law as developed in England.

King John revoked the Magna Carta a few months after he had accepted it, but after his death it was replaced by others executed in the reign of his son, Henry III. Both Coke and Blackstone considered the Magna Carta that Henry executed in 1225 to be the definitive version of the document that secured the liberties of Englishmen. Both commentators interpreted this Magna Carta as prohibiting the adoption of arbitrary and capricious laws and guaranteeing that no freeman shall be deprived of his life, liberty, or property, unless it be done pursuant to the law of the land, a principle that Coke referred to as due process of law. This required a fair and proper judicial trial and compliance with other laws of the land. Both agreed that laws must not be retroactive and must serve a public and not a private interest. Coke, while serving as a judge, contributed to rulings that regulatory laws must substantially advance the purpose for which the government had imposed them and that no person should be a judge in his own cause. He presided over a court that ruled that exactions for public improvements must be imposed in proportion to the benefits received. His court supported economic rights, explaining that every person possesses the liberty to practice the trade, occupation, or vocation of his choice. Monopolies were illegitimate because they eliminated the freedom of people to engage in economic activity. In the famous Dr. Bonham's Case, Coke's court struck down a statute of parliament which accorded the London College of Physicians complete discretion to bar graduates of professional universities from the practice of medicine.

Blackstone was a strong proponent of individual rights, declaring that "every wanton and causeless restraint of the will of the subject, whether produced by a monarch, a nobility, or a popular assembly is a degree of tyranny." Laws that "regulate and constrain our conduct in matters of mere indifference, without any good end in view, are destructive of liberty." Property rights were critical in Blackstone's vision of individual liberty and he identified two safeguards for property owners as the most critical. First, indemnification must be awarded a nonconsenting owner whose property is taken by eminent domain. Second, a property owner is protected against physical invasion of his property by the laws of trespass and nuisance. These protections would later be secured in the due process and takings clauses of our Bill of Rights.

For most of the period from their migration in the early seventeenth century to the years prior to the American Revolution, the residents of English America enjoyed considerable freedom and prosperity and their numbers steadily rose. Economic well-being reached historically high levels. When the English began to impose regulations and taxes on Americans, who had experienced until then relatively modest government controls, these impositions met with great resistance and ultimately revolution, which led to the creation of a new nation of substantially confined powers. John Locke's articulation of the principles of freedom and limited government coupled with the commentaries of Coke and Blackstone provided the theoretical grounding for the founding generation's vision of a limited government dedicated to the protection of individual liberty, particularly the right of property.

The first post-revolutionary attempt at constructing a workable confederation between the thirteen states was a failure. Each state operated as a separate nation, applying protectionist measures against its neighbors and rejecting any serious limitation on its powers, thereby creating commercial problems for all. Many political and intellectual leaders concluded that unless the Confederation was abolished and replaced by a single union of the states, chaos and even civil strife would result. Although convened to reform the Articles of Confederation, the Constitutional Convention of 1787 decided that the establishment of a union of all the states was essential to reduce or eliminate existing commercial barriers. Instead of reforming the Articles, the Convention decided to frame a constitution for a new nation.

Delegates to the 1787 Constitutional Convention recognized the tension between majority rights and personal rights and sought to achieve reasonable accommodation between the two. They created a nation of limited and enumerated authority separating the government into three branches, legislative, executive, and judicial, and greatly confining the powers of each by building in checks and balances. This new nation would be a commercial republic that relied principally on the productivity and ingenuity of its citizens to sustain and advance the public welfare.

The Constitutional generation strongly believed in protection of property rights. The nation the Framers contemplated would be viable only if the means of production and distribution of goods and services were largely unrestrained by government. Ratified in 1788, the new Constitution contained few guarantees protecting individual freedom, rather it secured freedom by limiting the power of government to deprive people of their liberties. The government had no authority to eliminate the people's "rights as Englishmen," which largely meant their rights under the common law. With the addition of the Bill of Rights, specific protections for property rights were added, including the due process and takings clauses of the Fifth Amendment as well as five other clauses, indicating that the protection of property rights was a major concern in the crafting of the Bill of Rights.

In the period between 1790 and 1871, the U.S. Supreme Court and state courts strongly protected property rights under various theories. Most states interpreted state due process clauses (or their equivalent, law of the land) and takings clauses in the U.S. or state constitutions to protect property rights. Some applied common law interpretations advanced by Coke and Blackstone. The following cases are illustrative of this trend. Beginning the period with Van Horne's Lessee v. Dorrance (1795) and ending it with Yates v. Milwaukee (1870) and Pumpelly v. Green Bay Co. (1871), Supreme Court justices applied the common law in whole or in part to require payment of compensation for excessive limitations imposed on property rights. In the early 1800s the New York courts were the most prestigious among the state courts, due principally to the state's eminent jurist, James Kent, the author of an influential treatise: Commentaries on the United States Constitution (1826). Probably Kent's most cited decision was in Gardner v. Trustees of the Village of Newburgh (1816), in which he applied the common law of nuisance to determine whether the village had violated Gardner's property rights by installing new water facilities and in the process cutting off the flow of a stream to his property. Under the common law, diverting or obstructing a water course was a nuisance when it caused harm to a property owner. Kent held that the right to a stream of water "is as sacred as a right to the soil over which it flows." The village had, unsuccessfully, argued that since Gardner's damages were consequential, a deprivation had not occurred. New York did not have a taking clause in its constitution at that time, but Kent's reliance on common law principles proved a strong grounding for property rights. Thus, by the early 1870s prevailing jurisprudence in the United States endorsed Blackstone's interpretation of the common law as according strong protection to property rights, and they did so by invoking various common law and constitutional provisions.

Constitutional provisions signifying a strong commitment to property rights among the framers of the Constitution and the Bill of Rights as well as the Fourteenth Amendment are abundant. Article IV section 2 of the Constitution states that "The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." Section 1 of the Fourteenth Amendment mandates that "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." At the time that the Fourteenth Amendment was framed (1866) and ratified (1868), the prevailing judicial opinion in the United States was that the terms "privileges and immunities" meant those fundamental rights and liberties "which belong, of right, to the citizens of all free governments." These fundamental rights include the rights of property, as explained in the works of Coke and Blackstone and often quoted by courts in the United States. Similarly, the due process clause, originating in Magna Carta and included in our Fifth and Fourteenth Amendments, protects people against deprivation by government of their life, liberty, or property without a judicial determination that they had engaged in conduct warranting such deprivation. The Fifth Amendment's takings clause qualifies the due process clause by implicitly allowing a government to take private property for public use by eminent domain, but still protects property by requiring that if government takes property, compensation must be paid to the owner.

In the period from 1790 to 1871, the judiciary ascended to a major role in the nation. This is evident in the power it exercised with respect to property rights. By the beginning of this period, the people of the United States and of most of the states had ratified constitutions containing due process, or law of the land or takings clauses. However, in numerous instances, the interested parties had to await judicial determination of the constitutionality of government policies or actions that impinged on property rights. There was almost always serious controversy between the regulators and the regulated. Overall, hundreds of judges adjudicated hundreds of property rights cases. The U.S. Supreme Court and high courts in every one of the thirty-three states that was part of the union in 1860, with the exception of South Carolina, held unlawful the taking of property that was not accompanied by the payment of compensation for the harm sustained by the owner. South Carolina would, by constitutional amendment, secure the same result by 1868. While the judges differed in certain respects — an inevitable outcome considering the large number of judges and cases involved — the judiciary assured owners that their properties would be protected from confiscation or unreasonable regulation.

The first eight decades of our legal history enshrined property rights, insuring that this vital part of our English legacy would not be cast aside with the Revolution. Property rights were vigorously championed by courts throughout the land. In the absence of this judicial protection for property rights in our formative years, it is doubtful that our nation's unrivaled prosperity and political liberty would have been secured.

Ordering information: The book is now available from Transaction Publishers, 390 Campus Drive, Somerset, NJ 08873; phone (732) 445-1245 or toll free (888) 999-6778; fax (732) 748-9801.The book can also be purchased through Transaction Publishers' website,


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