The original verbiage in the Declaration of Independence was life, liberty and property. That is not surprising since our original European settlers came from countries where the land was owned by the realm – that is, owned by the king and a select few of the wealthy nobility. What is surprising is that this hard-won liberty has eroded to a point where a bureaucrat can usurp ownership of your front yard for a recreational path.
Before getting to that, we need historical reference. The kings of England after the Norman conquest could at any moment evict their subjects, then take their cattle, their crops and all of their possessions. That law of the realm came to be known as eminent domain or “the despotic power” (we can trace “realm” to the Old French for government). Beginning with the Magna Carta Libertatum (the Great Charter of the Liberties of England), things changed.
The common man came to acquire land, i.e., land he could legally protect not only from his noble and not-so-noble neighbors, but also from the crown. In fact, John Locke, the English philosopher, would eventually write: “The primary purpose of government was to protect rights in property since these rights were at the basis of all liberties.”
That basic right recognized by Locke’s “common law” was the right of sole dominion, the right to exclude others, the right against trespass, the right of quiet enjoyment, the right of free use, and so forth. By the time of William Pitt (the Great Commoner), the following could be declared in the House of Commons:
“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the King of England may not enter; all his forces dare not cross the threshold of the ruined tenement.”
This belief in the importance of private property was carried over into America’s founding principles. Indeed, according to the historian Paul Johnson, the United States is the only land founded specifically with the common man in mind – the origin of its claim to exceptionalism.
So, how high was the right of property on our list of first principles? The Founding Fathers, believing that respect for this right should be the heart of their courageous experiment in social contract, gave every legal weight to their emotional tie to property.
Indeed, Thomas Jefferson, reflecting on Locke, wrote the principle into the Declaration of Independence. (Benjamin Franklin is said to have only offhandedly substituted the more encompassing “pursuit of happiness” for the original “property.”)
And yet, today in Indiana, our statutes give even the appointed boards of a park department, to use the example with which I am most familiar, authority over elected mayors and city councils, authority over the democratic process itself. These officials can by fiat (the power of kings) evoke eminent domain for even an amenity as simple as a walking path.
I know that because such an officially mandated path, with its accompanying evocation of eminent domain, threatens the efforts of my wife and me to develop a family farm, meant to be a gift to our community, as a formal garden and arboretum. The energy we have spent fighting for our right of property has nullified the rewards of using our land altruistically – for the benefit of our neighbors.
Were we naive? Perhaps, but how could mere citizens without legal training know that a despotic power of a long-ago realm was so pervasive? How could we know it survived the Magna Carta, the Declaration of Independence and centuries of legal precedent to be handed to those who sit at desks deep in a parks department drawing nature walks on a map?
Well, we are learning — with the help of expensive counsel — we are learning.