Property is usually thought of as a bundle of rights. The most important being:
- Right to possession
- Right to rents or income
- Right to transfer or sell
- Right to determine who can enter or use
The ownership of property has always allowed for greater personal independence and the protection of property rights has always been considered essential to maintaining freedom, both political and economic, and a better standard of living.
The ideas of private property rights, due process of law and just compensation date back hundreds of years before the writing of our federal constitution. In the 13th century British noblemen demanded and received rights from the monarch including the right to own and possess property without fear of government entry or confiscation. The document was called the “Magna Carta.”
In the 17th century Sir Edward Coke, an English jurist, extended the right of due process of law established in the Magna Carta to all “freemen.” That meant no freeman could be deprived of his life, liberty or property without a fair trial.
In the 18th century, Sir William Blackstone, another great figure of English legal history, wrote that indemnification must be awarded to an owner whose property is taken for a public purpose.
The Pilgrims who landed at Cape Cod and established the Plymouth Bay Colony found that those who were granted their own parcels of land produced more crops. The General Court, the colony’s governing body, enacted laws, distributed property purchased from native tribes and probated wills among other things.
During the Revolutionary War it was not lost on British and Hessian soldiers that many colonists owned parcels of land big enough to feed their families and have enough crops left over to sell to others. In England and especially on the continent of Europe private ownership of land was not as common as it was among the colonists. Many British and Hessian soldiers abandoned their positions and deserted to become settlers and frontiersmen.
The British quartered their soldiers and officers in homes and properties belonging to colonists. This was not forgotten by the colonists. Thus the Third Amendment of the Bill of Rights says, “No Soldier shall in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” The writers of our federal constitution were quite aware of the importance of securing to each property owner dominion over his/her lands and houses.
General George Washington set a different example. He gave orders to his soldiers not to remove people from their homes and lands and not to take food or livestock without paying. Even when his men were starving and freezing, he held firm to that principle. Washington understood that not everyone agreed with the decision to declare independence from England and taking things from people without first paying would cost the soldiers and the new country the loyalty and support of the people.
In 1787 in Philadelphia the delegates to the Constitutional Convention approved a new federal constitution. Delegates in each state meeting in separate conventions to ratify the Constitution did not like the fact that there was no recitation of individual rights and restrictions upon the new federal government. Thus the first session of the Congress passed ten amendments known as the Bill of Rights.
Among the amendments is the right of all citizens to be free of “unreasonable searches and seizures of their persons, houses, papers, and effects” (Fourth Amendment) and “No person…..shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” (Fifth Amendment). Fortunately, eleven states ratified the Bill of Rights by the end of 1791. Connecticut did not ratify until April 19, 1939.
The ownership of private property has been a recognized right of United States citizens since the beginning of our country. Today we understand more fully that the person who possesses unique knowledge and ideas and obtains a patent or trademark or copyright owns a right to valuable property. Our founders knew that too and provided for protection of patents, trademarks, copyrights and other intellectual property rights in the Constitution. In Section 8 (Powers of Congress) it provides, “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Writings and Discoveries.”
Ideas and inventions; formulas and recipes; real estate and personal property; present and future interests in property; mineral, water and air rights; licenses, franchises, contract rights, business goodwill and other intangible assets; are all forms of property able to be owned privately and protected by law from theft, trespass, nuisance, vandalism, unauthorized copying, infringement and most importantly government confiscation.
John Locke, the 17th century philosopher wrote, “The reason why men enter into society is the preservation of their property.” Locke believed that the individual rights of life and liberty as well as ownership of tangible things constituted property. The authors of our Declaration of Independence and Constitution agreed. We are all the beneficiaries of their foresight.
References:
A Concise History of the Common Law by Theodore F.T. Plucknett,
Little Brown and Company Boston 1956
General George Washington, A Military Life by Edward G. Lengel
Random House New York 2005
Mayflower by Nathaniel Philbrick
Penguin Group New York 2006
Property Rights: from Magna Carta to the Fourteenth Amendment
By Bernard H. Siegan
Transaction Publishers New Brunswick (USA) 2001
The Second Treatise of Government by John Locke
Two Treatises of Government and Letter Concerning Toleration
ed. Ian Shapiro Yale University Press New Haven 2003
1776 by David McCullough
Simon and Schuster New York 2005
