Questions of Public Law (1737)
Cornelius van Bynkershoek
On Eminent Domain and the Payment for Property Appropriated under the Right of Eminent Domain
THAT authority by which the sovereign stands out above his subjects jurists call the right of. eminent or pre-eminent domain, following Grotius who first defined it in On the Law of War and Peace. I agree, however, with Thomasius in his comments on Huber’s De Jure Civitatis, who thinks that it would be more correct to call it imperium eminens than dominium eminens, for whatever be this right that rulers exercise it derives from their sovereign authority. And so when Seneca spoke of this right he employed the word potestas, saying ‘Kings have potestas over all things, proprietas applies to individuals’. Now this eminent authority extends to the person and the goods of the subjects, and all would readily acknowledge that if it were destroyed, no state could survive. Through this power war is declared, peace made, treaties signed, taxes and duties levied, subjects and their property pledged in part or in whole, and even the property of individuals appropriated if the sovereign see fit. That the sovereign has this authority no man of sense questions, the whole subject of dispute concerns the definition of its control. If you have in mind a ruler who permits himself .to act according to his whims the discussion is to no purpose, but I have reference to one who is concerned for the public welfare, and could give reason if need be for his decisions and commands. The just ruler limits his own authority, and does not fear .to hear the judgement of others regarding its limitations. However, before you may define these limits you must review the different classes of eminent domain, discuss each, and pronounce judgement cautiously. Whether Jacobus Andreas Crusius, the Syndic of Minden, accomplished this with his Tractatus Historicus-Politicus-Juridicus de Prae minenti Dominio Principis et Reipublicae in subditos, eorum bona ac jus quaesitum. I should rather have you discover from reading the book than from words of mine. The treatise is found among his Opuscula varia published at Minden in 1668. If I were to submit to examination all he says I would exceed the limits I have set myself, and at the same time would have the labour of cleansing the Augean stables.
I have decided to discuss only the cases where the sovereign by right of eminent domain takes from his subjects an acquired right whether in things movable or immovable or in action. All authorities agree that the sovereign may do this, but they do not equally agree as to the occasion when it is lawful. Pufendorf, when speaking of this right of the ruler, expresses the opinion that ‘there is no occasion for exercising the right of eminent domain unless the state’s necessity requires it’. However, he does not demand that this be the last degree of necessity. Grotius is satisfied merely with utility, saying that in order to deprive subjects of an acquired right ‘by the power of eminent domain, there is required in the first place public utility, and next that if possible compensation at the common expense be made to him who has lost what was his’. And presently in section 8, ‘the rights of subjects are liable to this right of eminent domain so far as public utility demands’. It is indeed very true that rulers have and still do exercise this right everywhere, both on the ground of necessity and of utility. And further, utility so merges into necessity that they are not easily distinguished; indeed what one calls utility another will call necessity. I would not prohibit the ruler from using this right on either ground, nor do I know any one who would. However, since it incurs so much ill will to deprive men of an acquired right the ruler should ever remember: ‘Not only what is permissible, but also what is seemly.’
He should also recall the moderation of Augustus who ‘narrowed the plans of his forum, not daring to dispossess the owners of the neighbouring houses’ according to Suetonius. Let him also remember the moderation of the Roman senate which, finding the state bankrupt, sold the public lands rather than refuse prompt payment to the creditors on the portions due. Finally, let him keep in mind that the right of eminent domain must be exercised with prudence not rashly abused, and it is an abuse of the right to use compulsion under it without adequate grounds or to take more than public necessity or utility absolutely requires. But if he appropriates upon adequate grounds, he will do so with the least possible harm to his subjects and upon payment of the price from the common treasury. He who convinces himself that he can act differently is a bandit rather than a prince.
What I have said about adequate grounds might need fuller explanation, if it were not already understood that it has reference entirely to necessity or public utility. If, as Grotius says, this right may be exercised on the ground of public utility, this is all the more true of public necessity, for the safety of the people is the supreme law. Public roads are surely necessary since intercourse and commerce are impossible without them. And if the public highway is destroyed by a flood of water from a stream or the fall of a building, the nearest landowner must afford a passage, according to Javolenus’s extracts from Cassius. As much is taken from the land of the neighbouring owner as the road requires, and this public necessity demands.
But how far do the claims of public utility extend? Doubtless the decision of this question lies with the ruler, nevertheless we ask for a definition upon the supposition that the ruler is a man of correct principles. I do not care to mention the numberless types of public utility that one may chance to meet, and to take up each for consideration. It will suffice to note a few about which all are agreed, and from these you may infer the rest. The right of eminent domain can especially be exercised in taking possession of property without which public works, markets, and it may be, churches, cannot be built. As a consequence private individuals, even against their wishes, are compelled to sell their abodes for works of this kind. If Augustus did not desire to exercise this right, that is wholly due to his own moderation. There is no state that does not need public works, and if it is legal to take possession of houses of individuals in order to construct these, it will be all the more permissible to tear down houses of individuals, take possession of land and remove obstructions in order to dig canals through the fields for the use of shipping, and to extend or fortify the walls of towns and cities. Consequently not only does the sovereign have the right to exercise this authority, but he may concede this right by special grants to magistrates of towns and cities as is shown by the instances which I cited in the preceding chapter. I am not concerned whether you base this procedure upon necessity or public utility, for I freely grant the right to the sovereign upon either ground; others may quibble about it if they enjoy shuffling with words: as I said, about the matter itself there is no disagreement. Surely we build walls not only when an enemy is approaching, but even in the midst of peace and with equal right at either time. That this be done in times of peace is even required by considerations of public safety, for walls hastily built when the enemy is approaching seldom suffice to withstand the attack.
But as there is a diversity of circumstances so there is a diversity of opinions. What seems necessary to one may not even seem useful to another. Suppose that the liberty of the sovereign is in danger unless he exercises the right of eminent domain, and suppose it fits his purpose to exercise it but not the purpose of others. In Zealand recently this question was discussed with great warmth, and it has not yet been settled between the several provinces of the Netherlands. The Estates of Zealand by an act of November 17, 1732, took possession of certain feudal rights belonging to the inheritance of William III of Orange which he had at Veere and Flushing. The Estates feared apparently that the heir of William’s heir might, if he were a vassal, encroach upon the liberties of the state by exercising that feudal right. The heir opposed this action, and refused to accept the price which the Estates were prepared to pay to him for his abolished rights; and the money was accordingly placed in safe keeping. Meanwhile Zealand has possession, but what will be the outcome let him say who is a prophet. Holland and some of the provinces supported Zealand; others again have complained profusely about the injustices of Zealand and bitter pamphlets have been written in support of both contentions. Considerations of prudence urge one not to discuss here, whether or not the grounds for exercising the right of occupation were adequate in this case, nor would space allow me to say all that the subject requires.
He who would with me postulate the principle that necessity or public utility is requisite for the exercise of eminent domain will exclude all other cases without exception. Or would you hold that the subject is not only obliged to give up his property for these two reasons, but also to gratify the pleasure and delights of the public and even for the adornment of public places? I should not think so, nor did the Roman senate in the case of M. Licinius Crassus, who did not wish an aqueduct being built by the praetors to be brought through his lands when it was said to serve no other purposes than those of pleasure and adornment. The author of the Political Disquisitions has given the arguments on both sides of the question as well as the decree of the senate. The Roman senate decided in the negative, but William I of Orange took the opposite view in the Charter issued in the name of Philip II of Spain for the founding of the Leyden Academy (January 6, 1574). In this document he authorized the magistrates of Leyden at any time to destroy and occupy private houses and other public and private property upon payment of the price to the private owners, not only for the buildings of the Academy, but also for ornamental purposes and for pleasure-grounds for the students, to quote the exact words: ‘In every way useful for the adornment of the same and for the recreation of the students, provided that they are bound .to repay the individual owners or possessors of the private houses at the rating decided upon by the aldermen.’ The kind of knowledge of public law here displayed, I would not employ, nor did the Roman senate in the case of Crassus, nor would Augustus, i who, to repeat, did not dare to dispossess owners of their homes in a case where the cause was much more reasonable.
Furthermore, for whatever cause property or claims of private persons be occupied or destroyed for public purposes, it is equitable and just as Grotius says in the passage cited, that the owners be reimbursed from the public treasury. Thus Tiberius made a subvention to the senator Aurelius Pius who complained that this house was weakened by the construction of the public highway and the aqueduct. And in the above-cited passage from the Code, in case houses were destroyed for public works, it is defined up to what point the magistrates are authorized to estimate damages, with a provision that if a greater sum is required the valuation shall be in the hands of the emperor. In fact in almost all the grants and charters mentioned in the preceding chapter, a clause is inserted providing that if a magistrate takes possession of private buildings or grounds for public need or use, the value of these shall be paid to the owners at the estimation of the court or some trustworthy arbitrator; it appears distinctly in the charter of William I, which I mention by way of example.
I should say the same if suburban houses are burned or torn down to prevent the approach of an enemy, and that also is the decision of the court of Friesland dated May 17, 1611. It is incorrect to contradict this decision by reference to the Digest, for that passage says only that the Lex Aquilia fails to apply unless the damage is done wrongfully, and this is reasonable since the Lex Aquilia is a penal law. Accordingly the Lex Aquilia does not apply when private property is destroyed for the public welfare, but an action at law in factum for the value of the goods destroyed is not precluded.
Therefore, I do not in general approve of another decision of the same court of Friesland dated December 20, 1623, which denied the owners reimbursement for a suburban orchard that was cut down to prevent the enemy from hiding there; since the same reasons that argued in favour of repayment for the burned house support repayments for the orchard that was cut down. In one respect the decision of 1623 may perhaps be considered just, namely, because the orchard in question belonged to a man who deserted to the enemy. I know well that Peckius without mention of this special reason agreed with the court, and that in another case also his decision conformed with the above-cited sentence of the court of Friesland. I know also that Crusius approved of this sentence on the ground that it was illegal to build houses and plant orchards outside of the walls, and therefore the persons in question sustained the loss they had deserved by their own fault. But I know of no law which in general terms forbids the building of houses outside the walls; for the passage in the Code, to which I notice they refer, is concerned with parapetasia, that is, with sheds that are built up against public buildings as Jacques Godefroy correctly explained under cited title of the Theodosian Code. It was forbidden to erect such sheds for fear of fire and for other reasons which you may read there if you desire.
If there is any law which forbids building near the city, and men do so in disregard of the law, the buildings may at any time be destroyed not only without reimbursement for the value, but even with imposition of the penalty provided for the infraction of the law, as is distinctly provided by the statutes of Leyden. And when the people of Alkmaar petitioned for a prohibition against the erection of buildings within 200 perches of the fortifications, and permission to tear down what was built within that distance, Charles V on September 15, 1528, decided that no buildings should be erected within 100 perches, but that those already erected might remain. Again William I of Orange on October 26, 1573, decided that no buildings should be erected within 600 perches of the walls of Alkmaar, and that if any were so erected despite the law they might be torn down by the magistrates at pleasure. If the destruction of the buildings devolved to the decision of the magistrates, the special prescription in this case would be of no value, even as we find that such prescriptions have no value in similar cases. In fact, buildings near the walls are often allowed with the stipulation that the builders are obliged to destroy them at their own expense as soon as the magistrate commands it; a provision which occurs in a grant made to Amsterdam by Philip II in 1556, and this agrees entirely with the ancient statutes of Amsterdam, dated April 22, 1399 and March 31, 1401. In the same class is the charter of Schoonhoven granted March 14, 1549, according to which the owners of trees near the water-mills were reimbursed for the value of the trees to be cut down, but if they planted any afterwards they would be compelled to clear them away at their own expense and in addition pay a fine imposed for breach of the law.
Such are the principles in these special cases. But why should we not lay down a general principle that all loss sustained by private citizens for common necessity or utility should be shared by all and should be paid for from the public treasury? This is indeed the official opinion expressed in the Nederlandsch Advis-boek. But when in 1672 the dikes were cut and the water was let out to check the enemy, the author of that opinion expressed the fear that the Estates could not make good all the damage to the fields; for, he said, when land is occupied for fortifications, the owner is not reimbursed for the value of it. Now this decision is correct in substance, but the reason given, is not. He had good ground for his fear that the losses due to the water could not be made good, and that not only because the Estates did not have enough money in the treasury to pay for the damage done, but also because the damage was apparently in the nature of ordinary damage caused by war, just as though that very ground had been chosen for the battle-field, or for the position of the camp, or something else of that nature. Losses sustained in the misfortunes of war all subjects must suffer with equanimity, and there is never any restitution made for it. But what the author of the above-cited opinion says, namely, that the value of lands used for fortifications is not refunded, this may indeed be true in the heat of warfare while ‘arms impose silence upon the laws’ or when fortifications are being built in haste, but I have not yet found this to be true at the time when permanent walls are being built. The laws which I have cited in this and the preceding chapters as well as the usage of this and other nations contradict this view. The Spaniards certainly, when in 1667 they occupied some lands near Brussels for fortifications, announced that each man would receive from the public treasury the amount of his losses. I recall that the French issued a similar decree at Strasburg in 1699; and there are an abundance of examples of this procedure everywhere.