Before Eminent Domain

Before Eminent Domain: Toward a History of Expropriation of Land for the Common Good

Susan Reynolds
Copyright Date: 2010
Pages: 192
https://www.jstor.org/stable/10.5149/9780807895863_reynolds
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  • Book Info
    Before Eminent Domain
    Book Description:

    In this concise history of expropriation of land for the common good in Europe and North America from medieval times to 1800, Susan Reynolds contextualizes the history of an important legal doctrine regarding the relationship between government and the institution of private property.Before Eminent Domainconcentrates on western Europe and the English colonies in America. As Reynolds argues, expropriation was a common legal practice in many societies in which individuals had rights to land. It was generally accepted that land could be taken from them, with compensation, when the community, however defined, needed it. She cites examples of the practice since the early Middle Ages in England, France, Germany, Italy, and Spain, and from the seventeenth century in America.Reynolds concludes with a discussion of past and present ideas and assumptions about community, individual rights, and individual property that underlie the practice of expropriation but have been largely ignored by historians of both political and legal thought.

    eISBN: 978-1-4696-0428-2
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-x)
  4. CHAPTER 1 Introduction
    (pp. 1-14)

    In October 1905 F.W. Maitland wrote a letter to the secretary of the Selden Society in which he remarked:

    I have often wondered where the Americans found their eminent domain—or rather how they came to borrow just this from the continental sources. Has it ever struck you that what protected us against this was the completeness of our feudalism? Unquestionably we all hold of the King, but the lord has no right to “expropriate” the tenant. Just because there is supreme landlordship there is no eminent domain in the foreign sense.¹

    Maitland died just over a year later, so...

  5. CHAPTER 2 Western Europe before 1100
    (pp. 15-32)

    Greece is certainly not part of western Europe, and only half, at most, of the Roman empire was, but it seems reasonable to say something about them here, if only because they are traditionally seen as the background to later European history. The Roman material is clearly relevant: although medieval lawyers do not seem to have used the texts in the Theodosian code orNovellaethat dealt with actual expropriations, they used some from theCodexandDigestto argue about the emperor’s jurisdiction and rights over his subjects’ lands.

    The evidence of possible expropriation in ancient Greece includes legislation...

  6. CHAPTER 3 Western Europe and British North America, 1100–1800
    (pp. 33-84)

    I start my argument about the practice of expropriation for the common good after 1100 with England, because, after providing the evidence from Domesday Book that I cited in chapter 2.3 and 2.5 of compensation paid to churches and Norman invaders for lands taken from them, England then provides my next piece of reasonably hard evidence in 1130. I then take up Italy, where I discuss a case from 1156 that, though chronologically not the next, is nicely unambiguous and quickly followed by even better cases. It is not surprising that the best, as well as the earliest, medieval evidence...

  7. CHAPTER 4 Justifications and Discussions
    (pp. 85-110)

    As I have argued, using the evidence I have cited, the justice of expropriation for the public good seems to have been largely taken for granted. That being so, the rarity of formal discussions of the principle may be hardly surprising. Individual expropriations were indeed often justified by the stated or implied reason that they were made for the common or public good. This, however, begs the question of the nature of property rights in land and of the apparently assumed priority over them of the good of the community, however defined. It also begs the question of the authority...

  8. CHAPTER 5 Communities, Individuals, and Property
    (pp. 111-140)

    In chapter 1 I remarked on an apparent lack of interest in expropriation for the common good on the part of historians of political thought, even those concerned with periods when the rights of property were much discussed.¹ Most historians of expropriation have correspondingly had little to say about the political ideas and assumptions that are likely to have underlain the subjection of individual property to collective needs.² The account I have given in chapters 2 and 3 of expropriation in practice, and in chapter 4 of the rather scanty and superficial justifications of it, suggest that its relation to...

  9. Works Cited
    (pp. 141-168)
  10. Index
    (pp. 169-175)