Commentaries on American Law (1826-30)

Chancellor James Kent

Of the History, Progress, and Absolute Rights of Property

HAVING concluded a series of lectures on the various rights of persons, I proceed next to the examination of the law of property, which has always occupied a preeminent place in the municipal codes of every civilized people. I purpose to begin with the law of personal property, as it has appeared to me to be the most natural and easy transition, from the subjects which we have already discussed. This is the species of property which first arises, and is cultivated in the rudest ages; and when commerce and the arts have ascended to distinguished heights, it maintains its level if it does not rise even superior to property in land itself, in the influence which it exercises over the talents, the passions, and the destiny of mankind.

To suppose a state of man prior to the existence of any, notions of separate property, when all things were common, and when men, throughout the world, lived without law or government, in innocence and simplicity, is quite fanciful, if it be not altogether a dream of the imagination. It is the golden age of the poets, which forms such a delightful picture in the fictions, adorned by the muse of Hesiod, Lucretius, Ovid, and Virgil. It has been truly observed, that the first man who was born into the world, killed the second; and when did the times of simplicity begin? And yet we find the Roman historians and philosophers,1 rivaling the language of poetry in their descriptions of some imaginary state of nature, which it was impossible to know, and idle to conjecture. No such state was intended for man in the benevolent dispensations of providence; and in following the migrations of nations, apart from the book of Genesis, human curiosity is unable to penetrate beyond the pages of genuine history; and Homer, Herodotus, and Livy, carry us back to the confines of the fabulous ages. The sense of property is inherent in the human breast, and the gradual enlargement and cultivation of that sense, from its feeble force in the savage state, to its full vigor and maturity among polished nations, forms a very instructive portion of the history of civil society.2 Man was fitted and intended by the author of his being, for society and government, and for the acquisition and enjoyment of property. It is, to speak correctly, the law of his nature; and by obedience to this law, he brings all his faculties into exercise, and is enabled to display the various and exalted powers of the human mind.

Occupancy, doubtless, gave the first title to property in lands and moveables. It is the natural and original method of acquiring it; and upon the principles of universal law, that title continues so long as occupancy continues.3 There is no person, even in his rudest state, that does not feel and ac. knowledge, in a greater or less degree, the justice of this title. The right of property, founded on occupancy, is suggested to the human mind, by feeling and reason, prior to the influence of positive institutions. There have been modern theorists, who have considered separate and exclusive property, and inequalities of property, as the cause of injustice, and the unhappy result of government and artificial institutions. But human society would be in a most unnatural and miserable condition, if it were instituted or reorganized upon the basis of such speculations. The sense of property is graciously implanted in the human breast, for the purpose of rousing us from sloth, and stimulating us to action; and so long as the right of acquisition is exercised in conformity to the social relations, and the moral obligations which spring from them, it ought to be sacredly protected. The natural and active sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.4 The exclusive right of using and transferring property, follows as a natural consequence, from the perception and admission of the right itself.5 But, in the infancy and earlier stages of society, the right of property depended almost entirely upon actual occupancy. Property, without possession, is said to be too abstract an idea for savage life; and society had made some considerable advances towards civilization, before there was an admission of a right or title to property distinct from the possession. By the ancient law of all the nations of Europe, the bona fide possessor of goods had a good title as against the real owner, in whatever way, whether by force, fraud, or accident, the owner may have been divested of the possession. It was the law, in several parts of Germany, so late at least as the middle of the last century, according to Heineccius,6
that if one person should lend, or hire, or deposit his goods with another, and they should come to the possession of a third person, be would be entitled to hold them as against the original owner. By the Roman law, in its early state, property stolen and sold was lost to the real owner, and the only remedy was by an action (conductio furtiva) against the thief. But when the Roman law advanced to maturity, it was held, that theft did not deprive a man of his title to property, and the action of rei vindicatio was, in effect, given against the bona fide purchaser.7 The law of the twelve tables, by which the possession of one year was a good title by prescription to moveables, shows what a feeble and precarious right was attached to personal property out of possession.

The ancient laws of Europe confiscating stolen goods, on conviction of the thief, without paying any regard to the right of the real owner, is another instance to prove the prevalence of a very blunt sense of the right of property distinct from the possession. The English doctrine of wrecks was founded on this imperfect notion of the right of property, when it had lost the evidence of possession. By the common law, as it was laid down by Sir Wm. Blackstone,8 goods wrecked were adjudged to belong to the king, and the property was lost to the owner. This, he admits, was not consonant to reason and humanity, and the rigor of the common law was softened by the statute of Wm. 1. 3 Edw. l. c. 4. which declared, that if any thing alive escape the shipwreck, be it man or animal, it was not a legal wreck, and the owner was entitled to reclaim his property within a year and a day. Upon this statute the legal doctrine of wrecks has stood to this day. St. Germain, the author of the Doctor and Student, did not seem to think, that even the law, under this statute, stood with conscience,9 for why should the owner forfeit the shipwrecked goods, though it should happen, that no man, dog, or cat, (to use the words of the statute,) should come alive unto the land out of the slip? The only rational ground of the claim on the part of the crown is, that the true owner cannot be ascertained. The imperial edict of the Emperor Constantine was more just than the English statute, for it gave the wrecked goods, in every event, to the owner;10 and Bracton, who wrote before the statute of 3 Edw. I, and who was acquainted with the edict of Constantine, lays down the doctrine of wreck upon perfectly just principles.11 He males it, to depend, not upon the casual escape of au animal, but upon the absence of all evidence of the owner. The statute of this state is like the edict of Constantine, and the declaration of Bracton, for it declares, that nothing that shall be cast by the sea upon the land, shall be adjudged wreck, but the goods shall be kept safely for the space of a year and a day for the true owner, to whom the same is to be delivered on his paying reasonable salvage; and if the goods be not reclaimed by that day, they shall be sold, and the proceeds accounted for to the state.12
In the case of Hamilton and Smyth v. Davis,13 the very question arose in the K. B., whether the real owner was entitled to reclaim his shipwrecked goods, though no living creature had come alive from the ship to the shore. The grantee under the crown claimed the goods as a wreck, because the ship was totally lost, and no living animal was saved; and his very distinguished counsel, consisting of Mr. Dunning, (afterwards Lord Ashburton,) and Mr. Kenyon, (afterwards Lord Ch. J. of the K. B.,) insisted, that, according to all the writers, from the Mirror to Blackstone inclusive, it was a lawful wreck, as no living creature had come to the shore, and that Bracton stood unsupported by any other writer. But Lord Mansfield, with a sagacity and spirit that did him infinite honor, reprobated the doctrine urged on the part of the defendant, and declared, that there was no case adjudging that the goods were forfeited, because no dog, or cat, or other animal, came alive to the shore; that any such determination would be contrary to the principles of law, justice, and humanity; that the very idea was shocking; and that the coming ashore of a dog, or a cat, alive, was no better proof of ownership, than if they should come ashore dead; that the whole inquiry was a question of ownership; and that if no owner could be discovered, the goods belonged to the king, and not otherwise; and that the statute of 3 Edw. I. was not to receive any construction contrary to the plain and clear principles of justice and humanity.

After reading this interesting case, it appears rather surprising that any contrary opinion should have been seriously entertained in Westminster Hall, at so late a period as the year 1771; and especially that Sir Wm. Blackstone should have acquiesced, without any difficulty, in a different construction of the statute of Westminster the first.

But to return to the history of the law of property. The title to it was gradually strengthened, and acquired great solidity and energy, when it became to be understood, that no man could be deprived of his property without his consent, and that even the honest purchaser was not safe under a defective title.

The exception to this rule grew out of the necessities and the policy of commerce; and it was established as a general rule, that sales of personal property in market overt, would bind the property even against the real owner. The markets overt in England depend upon special custom, which prescribes the place, except that, in the city of London, every shop in which goods are exposed publicly to sale, is market overt for those things in which the owner professes to trade. If goods be stolen, and sold openly in such a shop, the sale changes the property. But if the goods be not sold strictly in market overt, or if there be not good faith in the buyer, or there be any thing unusual or irregular in the sale, it will not affect the validity of it as against the title of the real owner.14 The common law, according to Lord Coke, held it to be a point of great policy, that fairs and markets overt should be well furnished, and to encourage them it did ordain, that all sales and contracts of any thing vendible in markets overt, should bind those who had right; but, he adds, that the rule had many exceptions, and he proceeds to state the several exceptions, which show the precision and caution with which the sale was to be conducted so as to bind the property. It is the settled English law, that a sale out of market overt, or not according to the usage and regulations of the market overt, will not change the property as against the real owner. Thus, we find, in the case of Wilkinson v. King,15 that where the owner of goods bid sent them to a wharf in the borough of Southwark, where goods of that sort were usually sold, and the wharfinger, without any authority, sold the goods to a bona fide purchaser, this was considered not to be a sale in market overt so as to change the property, but a wrongful conversion; and the purchaser was held liable in trover to the true owner.

It is understood, that this English custom of markets overt does not apply to this country; and the general principle applicable to the law of personal property throughout civilized Europe is, that nemo plus juris in alium transferre potest quam ipse habet. This is a maxim equally of the common, and of the civil law;16 and a sale ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor. It has been frequently held in this country,17 that the English law of markets overt had not been adopted, and, consequently, as a general rule the title of the true owner cannot be lost without his own free act and consent. How far that consent, or a due authority to sell, is to be inferred, in many cases, for the encouragement and safety of commerce, may be discussed in our future inquiries. My object at present is, only to show how the right of the true owner to property kept increasing, in consideration and vigor, with the progress of law from rudeness to refinement.

Title to property resting originally in occupancy, that title ceased, of course, upon the death of the occupant. Sir William Blackstone considers the descent, devise, and transfer of property, equally political institutions and creatures of the municipal law, and not natural rights; and that the law of nature suggests, that on the death of the possessor, the estate should become common, and be open to the next occupant. He admits, however, that, for the sake of peace and order, the universal law of almost every nation gives to the possessor the power to continue his property by will; and if it be not disposed of in that way, that the municipal law steps in, and declares who shall be the heir of the deceased.18 As a mere speculative question, it may be well doubted, whether this be a perfectly correct view of the law of nature on this subject. The right to transmit property by descent, to one’s own offspring, is dictated by the voice of nature.19 The universality of the sense of a rule or obligation, is pretty good evidence that it has its foundations in natural law. It is in accordance with the sympathies and reason of all mankind, that the children of the owner of property, which he acquired and improved by his skill and industry, and by their association and labor, should have a better title to it at his death, than the passing stranger. This better title of the children has been recognized in every age and nation, and it is founded in the natural affections, which are the growth of the domestic ties, and the order of Providence.20 But the particular distribution among the heirs of the blood, and the regulation and extant of the degrees of consanguinity to which the right of succession should be attached, do undoubtedly depend essentially upon positive institution.

The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience, and mutual wants. It was first applied to moveables; and a notion of separate and permanent property in land, would not have arisen until men had advanced beyond the hunter and shepherd states, and become husbandmen and farmers. Property in land would naturally take a faster hold of the affections, and, from the very nature of the subject, it would not be susceptible of easy transfer, nor so soon as moveable property be called into action as an article of commerce.

Delivery of possession was, anciently, necessary to the valid transfer of land. When actual delivery became inconvenient, symbolical delivery supplied its place; and as society grew in cultivation and refinement, writing was introduced, and the alienation of land was by deed.

The gratuitous disposition of land by will, was of much slower growth than alienations, in the way of commerce, for a valuable consideration, because the children were supposed to have a right to the succession on the death of the parent, though Grotius considers it to be one of the natural rights of alienation.21 In the early periods of the English law, a man was never permitted totally to disinherit his children, or leave his widow without a provision.22 Testaments were introduced by Solon into the Athenian commonwealth, in the case in which the testator had no issue; and the Roman law would not allow a man to disinherit his own issue, his sui et necessarii haredes, without assigning some just cause in his will. The reason of the rule in the civil law was, that the children were considered as having a property in the effects of the father, and entitled to the management of the estate. The querela inofficiosi testamenti, was an action introduced in favor of the children, to rescind wills made to their prejudice, without just cause. But the father could charge his estate with his debts, and so render the succession unprofitable; and the children could, in that case, abandon the succession, and so escape the obligation of the debts.23

In England, the right of alienation of land was long checked by the oppressive restraints of the feudal system, and the doctrine of entailments. All those embarrassments have been effectually removed in this country; and the right to acquire, to hold, to enjoy, to alien, to devise, and to transmit property by inheritance, to one’s descendants, in regular order and succession, is enjoyed in the fulness and perfection of the absolute right. Every individual has as much freedom in the acquisition, use, and disposition of his property, as is consistent with good order, and the reciprocal rights of others. The state has set bounds to the acquisition of property by corporate bodies; for the creation of those artificial persons is a matter resting in the discretion of the government, who have a right to impose such restrictions upon a gratuitous privilege or franchise, as the sense of the public interest or convenience may dictate. With the admission of this exception, the legislature have no right to limit the extent of the acquisition of property, as is suggested by some of the regulations in ancient Crete, Lacedaemon, and Athens;24 and has also been recommended in some modern Utopian speculations. A state of equality as to property is impossible to be maintained, for it is against the laws of our nature; and if it could be reduced to practice, it would place the human race in a state of tasteless enjoyment and stupid inactivity, which would degrade the mind, and destroy the happiness of social life.25 When the laws allow a free circulation to property by the abolition of perpetuities, entailments, the claims of primogeniture, and all inequalities of descent, the operation of the steady laws of nature will of themselves preserve a proper equilibrium, and dissipate the mounds of property as fast as they accumulate.

Civil government is not entitled, in ordinary cases, and as a general rule, to regulate the use of property in the hands of the owners, by sumptuary laws, or any other visionary schemes of frugality and equality. The notion, that plain, coarse, and abstemious habits of living, are requisite to the preservation of heroism and patriotism, has been derived from the Roman classical writers. They praised sumptuary laws, and declaimed vehemently against the degeneracy of their countrymen, which they imputed to the corrupting influence of the arts of Greece, and of the riches and. luxury of the world, upon the freedom and spirit of those “lords of human kind,” who had attained universal empire by means of the hardy virtues of the primitive ages.26 But we need only look to the free institutions of Britain, and her descendants, and the prosperity and freedom which they cherish and protect, to be satisfied, that the abundant returns of industry, the fruits of genius, the boundless extent of commerce, the exuberance of wealth, and the cultivation of the liberal arts, with the unfettered use of all those blessings, are by no means incompatible with the full and perfect enjoyment of enlightened civil liberty. No such fatal union necessarily exists between prosperity and tyranny, or between wealth and national corruption, in the harmonious arrangements of Providence. Though Britain, like ancient Tyre, has her “merchants who are princes, and her traffickers the honorable of the earth,” she still sits “very glorious in the midst of the seas, and enriches the kings of the earth with the multitude of her riches, and of her merchandise.” Nor have the polished manners and refined taste for which France has been renowned in modern ages, or even the effeminate luxury of her higher classes, and of her capital, been found to damp her heroism, or enervate her national spirit. Liberty depends essentially upon the structure of the government, the administration of justice, and the intelligence of the people, and it has very little concern with equality of property, and frugality in living, or the varieties of soil and climate.27

Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessment on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citizens, but by their representatives in the legislature. The citizens are entitled to require, that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.

A just and perfect system of taxation is still a desideratum in civil government, and there are constantly existing well-founded complaints, that one species of property is made to sustain an unequal, and, consequently, an unjust pressure of the public burdens. The strongest instance in this state, and probably in others, of this inequality, is the assessments of taxes upon wild and unproductive lands; and the oppression upon this description of real property has been so great as to diminish exceedingly its value. This property is assessed in each town, by assessors residing in each town, and whose interest it is to exaggerate the value of such property, in order to throw as great a share as possible of the taxes to be raised within the town upon the nonresident proprietor. The wild land, which the owner finds it impossible to settle, or even to sell, without great sacrifice, and which produces no revenue, is assessed, not only for such charges as may he deemed directly beneficial to the land, such as making and repairing roads and bridged, but for all the wants and purposes of the inhabitants. It is made auxiliary to the maintenance of the poor, and the destruction of wild animals; and the inhabitants of each town have been left to judge, in their discretion, of the extent of their wants. Such a power vested in the inhabitants of each town, of raising money for their own use, on the property of others, has produced, in many instances, very great abuses and injustice. It has corrupted the morals of the people, and led to the plunder of the property of non-resident landholders. This was carried to such enormous extent in the county of Franklin, as to awaken the attention of the legislature, and to induce them to institute a special commission, to inquire into the frauds and abuses committed under this power, and also to withdraw entirely from the inhabitants of new towns, the power of raising money by assessments upon property, for the destruction of noxious animals.28 The ordinance of Congress, of the 13th of July, 1787,29 passed for the government of the northwestern territory, anticipated this propensity to abuse of power, and undertook to guard against it, by the provision that in no case should any legislature within that territory tax the lands of non-resident proprietors higher than those of residents. There is a similar provision in the constitution of Missouri, and one still broader in that of the state of Illinois. It is declared, generally, in that of the latter state, that the mode of levying a tax shall be by valuation, so that every person should pay a tax in proportion to the value of his property in possession.

This duty of protecting every man’s property, by means of just laws, promptly, uniformly, and impartially administered, is one of the strongest and most interesting of obligations on the part of government, and frequently it is found to be the most difficult in the performance. Mr. Hume30 looked upon the whole apparatus of government, as having ultimately no other object or purpose but the distribution of justice. The appetite for property is so keen, and the blessings of it are so palpable, and so impressive, that the passion to acquire is incessantly busy and active. Every man is striving to better his condition; and in the constant struggles, and jealous collisions, between men of property and men of no property, the one to acquire, and the other to preserve, and between debtor and creditor, the one to exact, and the other to evade or postpone payment, it is to be expected, especially in popular governments, and under the influence of the sympathy which the poor and the unfortunate naturally excite, that the impartial course of justice, and the severe duties of the lawgiver, should, in some degree, be disturbed. One of the objects of the constitution of the United States, was to establish justice; and this it has done by the admirable distribution of its powers, and the checks which it has placed on the local legislation of the states. These checks have already, in their operation, essentially contributed to the protection of the rights of property.

Government is bound to assist the rightful owner of property, in the recovery of the possession of it, when it has been unjustly lost. Of this duty there is no question. But if the possessor of land took possession in good faith, and in the mistaken belief that he had acquired a title from the rightful owner, and makes beneficial improvements upon the land, it has been a point of much discussion, whether the rightful owner, on recovery, was bound to refund to him the value of those improvements. This was the question in the case of Green v. Biddle,31 which was largely discussed in the Supreme Court of the United States, and which bad excited a good deal of interest in the state of Kentucky. The decision in that case, was founded upon the compact between the states of Virginia and Kentucky, made in 1789, relative to lands in Kentucky, and therefore it does not touch the question I have suggested. The inquiry becomes interesting, how far a general statute provision of that kind is consistent with a due regard to the rights of property. The Kentucky act declared that the bona fide possessor of land should be paid, by the successful claimant, for his improvements, and that the claimant must pay them, or elect to relinquish the land to the occupant, on being paid its estimated value in its unimproved state.

By the English law, and the common law of this country, the owner recovers his land by ejectment, without being subjected to the condition of paying for the improvements which may have been made upon the land. The improvements are considered as annexed to the freehold, and pass with the recovery. Every possessor makes such improvements at his peril.32 But if the owner be obliged to resort to Chancery for assistance, in the recovery of the rents and profits, Lord Hardwicke once intimated, in Dormer v. Fortescue,33 that the rule of the civil law, which is stronger than the English law, would be adopted, and consequently the bonae fidei possessor would be entitled to deduct the amount of his expenses for lasting and valuable improvements from the amount to be paid, by way of damages, for the rents end profits. The same intimation was given in the Court of Errors, in this state, in Murray v. Gouverneur,34 and that in the equitable action at law, for the mesne profits, the defendant might have the value of his improvements deducted by way of set off. These were extra judicial dicta; and there is no adjudged case, professing to be grounded upon common law principles, and declaring that the occupant of land was, without any special contract, entitled to payment for his improvements, as against the true owner, when the latter was not chargeable with having intentionally laid by and concealed his title. We have a statute in this state relative to lands, in what was formerly called the military tract, which declares, that the settler on those lands, under color of a bona fide purchase, should not be divested of his possession or recovery, by the real owner, until the former had been paid the value of his improvements made on the land, after deducting thereout a reasonable compensation to the owner for the use and occupation of the land.35 This act is as broad, and liable to the same objections that have been made against the Kentucky statute. There are similar statute provisions in Massachusetts and New Hampshire.36 So far as the act in the latter state was retrospective, and ex tended to past improvements made before it was passed, it has been adjudged in the Circuit Court of the United States for the District of New Hampshire to be unconstitutional; inasmuch as it divested the real owner of a vested title to the possession, and vested a new right in the occupant, upon considerations altogether past and gone.37 The statute in New Hampshire applied only to cases of a bona fide possession of more than six years standing, and only to the increased value of the land, by means of the improvements, and the real owner is allowed the mesne profits as in this state. The justice of that statute has been ably vindicated in the case of Withington v. Corey, in cases not within the reach of the decision in the Circuit Court of the United States.

The rule of the civil law was, that the bonae fidei possessor was entitled to be reimbursed, by way of indemnity, the expenses of beneficial improvements, so far as they augmented the property in value; and the rule was founded on the principle of equity, that nemo debet locupletari aliena jactura. It is not the amount of the expenses strictly so considered, but only the amount so far as it has augmented the property in value, that the claimant ought, in equity, to refund. But there are difficulties in the execution of this rule. The expense may have been very costly, and beyond the ability of the claimant to refund, and he may have a just affection for the property, and it might have answered all his wants and means in its original state, without the improvements. The Roman law allowed the judge to modify the rule, according to circumstances, and permitted the occupant to withdraw from the land the materials by which it was improved.38 In many, and indeed in most cases, that mode of relief would be impracticable; and Pothier39 proposes to reconcile the interests of the several parties, by allowing the owner to take possession, upon condition, that the repayment of those expenditures, by instalments, should remain a charge upon the land. There are embarrassments and difficulties in every view of this subject; and the several state laws to which I have alluded, do not indulge in any of these refinements. They require the value of the improvements to be assessed, and at all events, to be paid, and they are strictly encroachments upon the rights of property, ai known and recognized by the common law of the laid. There were, however, peculiar and pressing circumstances, which were addressed to the equity of the lawgiver, and led to the passage of those statutes, in reference to wild and unsettled lands in a new country, and where the occupant was not liable to any imputation of negligence or dishonesty. The titles to land, in many cases, had become exceedingly obscure and difficult to be ascertained, by reason of conflicting locations, and a course of fraudulent and desperate speculation; and it is impossible not to perceive and feel the strong equity of those provisions. But in the ordinary state of things, and in a cultivated country, such indulgences are unnecessary and pernicious, and invite to careless intrusions upon the property of others. There are but very few cases in which a person may not, with reasonable diligence, and cautious inquiry, discover whether a title be clear or clouded, and caveat emptor is a maxim of the common law, which is exceedingly conducive to the security of right and title. No man ought to be entitled to these extraordinary benefits of a bona fide possession of land, unless he entered and improved, in a case, which appeared to him, after diligent and faithful inquiry, to be from suspicion. There is no moral obligation, which should compel a man to pay for improvements upon his own land, which he never authorized, and which originated in a tort.

But there are many cases in which the rights of property may be made subservient to the public welfare. The maxim of law is, that a private mischief is to be endured rather than a public inconvenience. On this ground rest the rights of public necessity. If a common highway be out of repair, a passenger may lawfully go through an adjoining private enclosure.40 So, it is lawful to raze houses to the ground to prevent the spreading of a conflagration.41 These are cases of urgent necessity; but private property must, in many other instances, yield to the general interest. The right of eminent domain, or inherent sovereign power, it is admitted by all publicists, gives to the legislature the control of private property for public uses, and for public uses only. Roads may be cut through the cultivated lands of individuals without their consent, provided it be done by town officers of their own appointment, upon the previous application of twelve freeholders; and the value of the lands, and amount of the damages, must be assessed by a jury, and paid to the owner.42 So, lands adjoining the canals which have been recently made in this state, were made liable to be assumed for the public use, so far as was necessary for the great object of the canals, and provision was made for compensation to the individuals injured, by the assessment and payment of the damages. In these, and other instances which might be enumerated, the interest of the public is deemed paramount to that of any private individual; and yet, even here, the constitutions of the United States, and of this state, and of most of the other states of the Union, have imposed a great and valuable check upon the exercise of legislative power, by declaring, that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence, is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.43

L undoubtedly must rest in the wisdom of the legislature to determine when public uses require the assumption of private property, and if they should take it for a purpose not of a public nature, as if the legislature should take the property of A., and give it to B., the law would be unconstitutional and void. Real property, and the rights and privileges of private corporate bodies, are all held by grant or charter from government; and it would be a violation of contract and repugnant to the constitution of the United States, to interfere with private property, except under the limitations which have been mentioned.44

But though property be thus protected, it is still to be understood, that the lawgiver has a right to prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of. the right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such uses of property as would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaughter houses, operations offensive to the senses, the deposit of powder, the building with combustible materials, and the burial of the dead, may all be inter dieted by low, in the midst of dense masses of population, or, the general rind rational principle, that every person ought so to use his property as not to injure his neighbors, and that private interest must be made subservient to the general interest of the community.


     1.    Sallust Cat. sect. 6. Jurgur. sect. 18. Tacit. Ann. l. 3. sec. 26. Cic. Orat. pro P. Sextio, sect. 42. Justin, lib. 43. ch. 1.
     2.    Lord Kames considers the sense of property to be a natural appetite, and in its nature, a great blessing. Sketches of the History of Men, b. 1. sk. 2.
     3.    Grotius, Jure B. & P. b. 2. c. 3. sec. 4.
     4.    M. Toullier, in his account of the origin and progress of property, in his Droit Civil Francais, tom. 3. p. 40. insists, that a primitive state of man existed before the establishment of civil society, when all things were common, and temporary occupancy the only title; but he gives no sufficient proof of the fact. The book of Genesis, which he justly regards as the most ancient and venerable of histories does not show any such state of the human race. The first man born, was a tiller of the ground, and the second, a keeper of sheep. The earliest account of Noah and his descendants, after the flood, in Genesis. ch. 9, 10 and 13, prove that they were husbandmen, and planted vineyards, built cities, established kingdoms, and abounded in flocks and herds, and gold and silver. I observe, however, with pleasure that M. Toullier has freely and liberally followed Sir William Blackstone, in his elegant dissertation on the rise and progress of property. President Goguet, in his most learned work. De l’origine des lois, des arts, des sciences, et de leurs progres chez les anciens Peuples, b. 2. ch, 1. art. 1. considers agriculture as flourishing before the dispersion at Babel, though after that event mankind relapsed into the most deplorable barbarity.
     5.    Grotius, b. c. 6. s. 1.
     6.    Opera, tom. 5, part 2. p. 180, 181
     7.    This was by the perpetual edict extending the actio metus, which differed in nothing but in name from the rei vindicatio. Lord Kames’ Historical Law Tracts, tit. Property.
     8.    Com. vol. i. 290, 291.
     9.    Dr. and Stu. p. 267, 268.
   10.    Code, 11. 5. 1.
   11.    Lib. 3. p. 120, s.
   12.    Laws of N.Y. sess. 10. ch. 28. The colony laws of Massachusetts also preserved all wrecks for the owner, and did not follow the English law. Dane’s Abr. vol. 3. 144. Probably the statute law of other states is equally just.
   13.    5 Burr. 2732.
   14.    5 Co. 83. 12 Mod 521. Bacon’s Use of the Law, p. 157. 2 Inst. 713. Com. Dig. tit. Market, E.
   15.    2 Campb. N. P. 335.
   16.    Co. Litt. 309. Dig. 41. 1. 20. Pothier’s Traite du Contrat de Vente, p. 1. n. 7. Ersk.Inst. 481.
   17.    Dame v. Baldwin, 8 Mass. Rep. 518. Wheelwright v. De Peyster, 1 Johns. Rep. 480. Hosack v. Weaver, 1 Yeates, 478. Easton v. Worthington, 5 Serg. & Rawle, 130.
   18.    Com. vol. ii. ch. 1. p. 10-13.
   19.    Grotius, b. 2. c. 7. s. 5.
   20.    Christian’s Notes to 2d Blacks. Com. p. 1. Taylor’s Elements of the Civil Law, 519.
   21.    Grotius, b. 2. c. 6. s. 14.
   22.    1 Reeve’s Hist. of the Eng. Law, p. 11.
   23.    Dig. 29. 2. 12.
   24.    Arist. Politics, by Gillies, b. 2. c. 8. Potter’s Antiq. of Greece, vol. i, 167.
   25.    Harrington, in his Oceana, declared an Agrarian law to be the foundation of a commonwealth; and he undoubtedly alluded to the common interpretation and popular view of the Agrarian laws in ancient Rome and not to the new and just idea of M. De Niebuhr, that those laws related only to leases of the public lands belonging to the state. Montesquieu, in his Spirit of Laws frequently suggests the necessity of laws in a democracy establishing equality and frugality. Such suggestions are essentially visionary, though they may not be quite as extravagant as some of the reveries of Rousseau, Condercet, or Godwin. The limit to expenditure and acquisition has been sometimes attempted in this country. In 1778, there was an act of the legislature of Connecticut limiting the price of labor, and the products of labor, and even tavern charges; and the corporation ordinances in some of our cities have regulated the price of meats in the market. Such laws, if of any efficacy, are calculated to destroy the stimulus to exertion; but, in fact, they are only made to be eluded, despised, and broken.
   26.    No author was more distinguished than Sallust, for his eloquent invectives against riches, luxury, and the arts, which he considered as having corrupted and destroyed the Roman republic. Among other acquired vices, he says, the Romans had learned to admire statues, pictures, and fine wrought plate. Sal. Cat. ch. 11. Juvenal painted the mighty evils of luxury with the hand of a master. In a satire devoted to the delineation of extreme profligacy, he relieves himself for a moment by a brief but lively sketch of the pure and rustic virtues of the old Romans. He recurs again to the desolations of wealth and luxury, and rises to the loftiest strains of patriot indignation:
Saevior armis Luxuria incubuit, victumque ulciscitur orbem. Sat. 6. v. 291, 292.

   27.    The sumptuary laws of ancient Rome had their origin in the twelve tables, which controlled the wastefulness of prodigals, and unnecessary expenditure at funerals. The appetite for luxury increased with dominion and riches, and sumptuary laws were from time to time enacted, from the 566th year of the city down to the time of the emperors, restraining, by severe checks, luxury and extravagance in dress, furniture and food. They were absurdly and idly renewed by the most extravagant and dissipated rulers; by such conquerors as Sylla, Julius Caesar, and Augustus. The history of those sumptuary laws is given in Aulus Gellius, b. 2. c. 24. See, also, Suet. J. Caesar, s. 43.
       During the middle ages, the English, French, and other governments, were, equally with the ancient Romans, accustomed to limit, by positive laws, the extent of private expenses, entertainments and dress. Some traces of these sumptuary laws existed in France and Sweden as late as the beginning of the last century. Hallam on the Middle Ages, vol. ii, 287. Catteau’s View of Sweden. The statute of 10 Edw. III entitled, statutum de cibariis utendis, was the most absurd that ever was enacted. It prescribed the number of dishes for dinner and supper, and the quality of the dishes. Dr. Adam Smith, in his Wealth of Nations, justly considers it to be an act of the highest impertinence and presumption, for kings and rulers to pretend to watch over the economy and expenditure of private persons.
   28.    L. N.Y. sess. 45. ch. 26. sec. 9, 10 — Ch. 126.
   29.    Journals of the Confederation Congress, vol. xii. p. 58.
   30.    Essays, vol. i. 35.
   31.    8 Wheaton, 1.
   32.    Frear v. Hardenburgh, 1 Johns. Rep. 272.
   33.    3 Atk. 134.
   34.    2 Johns. Cases, 441.
   35.    L. N.Y. April 8th 1813, ch. 80.
   36.    Jones v. Carter, 12 Mass. Rep. 314. Withington v. Corey, 2 N. H Rep. 115.  
   37.    Society for the Propagation of the Gospel v. Wheeler, 2 Gall. Rep. 105.
   38.    Dig. 6. 1. 38.
   39.    Trait du Droit de Propriété, No. 347.
   40.    Absor v. French, 2 Show. 28. Young’s case, 1 Lord Raym. 725. This principle does not apply to the case of a private way. The right is confined to public highways out of repair. Taylor v. Whitehead, Doug. 745.
   41.    Dyer, 36. b. 1 Dallas’ Rep. 363.
   42.    Laws of N.Y. sess. 36. ch. 33.
   43.     Grotius De Jure B. & P. b. 3. c. 19. s. 7. — c. 20. s. 7. Puf. D Jure. Nat. et Gent. b. 8. c. 5. s. 3. and 7. Bynk. Q. J. Pub. b. 2. ch. 15.
   44.    Puf. b. 8. ch. 5. s. 3. Vattel. b. 1. ch. 20. s. 246, 255. Coup. 269. Com. Dig. tit. By-Law, C. Willes Rep. 388. The Corporation of New York v. Coates, decided by Judge Irving, October, 1824.