The concept of property propounded by Blackstone and Jacob appears to reflect the framers' understanding of property rights. James Madison, who drafted the just compensation clause, stated that property

means 'that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.' In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

20

Madison's statement is significant for two reasons. First, by beginning with a quotation from Blackstone, it suggests that Madison shared Blackstone's understanding of the nature of property rights. Second, the statement indicates that Madison (as did Blackstone and Jacob) understood that the bundle of legally recognized property rights did not extend to the use of property in a manner that impinges on the rights of others; such a use would not "leave to every one else the like advantage."

In sum, 18th century sources indicate that the framers viewed property not as "a right, singular" but as "a complex and subtle combination of many rights, powers, and duties". 21 As understood in the 18th century, these rights and powers allowed an individual to use, enjoy, and dispose of his lands and possessions, in any manner that did not impose harm on other individuals.

22

B. The Meaning of "Taking"

Citing Blackstone's Commentaries, Jacob's New Law Dictionary defined an “unlawful taking" by stating that "whoever . . . dispossesses me of [goods or chattels] is guilty of a transgression against the laws of society, which is a kind of secondary law of nature. Similarly, Samuel

20 Property, Nat. Gazette, Mar. 27, 1792, in 14 J. Madison, The Papers of James Madison 266 (R. Riland ed. 1977) (emphasis in the original).

21 F. McDonald, Novus Ordo Seclorum 13 (1985).

22 While Blackstone indicated that property rights were subject to "the laws of the land," he stated that the taking of property by law must be accompanied by "full indemnification." W. Blackstone, supra, at 52.

23

'G. Jacob, New Law Dictionary, supra. The New Law Dictionary defined two classes of takings: "unlawful takings" and "felonious takings." A “felonious taking" is a theft: it "must be done... with an intent to steal." Id.

Johnson's 18th century English dictionary defines "taking" as "seizure; distress". 24 Accordingly, a "taking" of "goods and chattels" is a "dispossession" of those items. It logically follows that a "taking" of "property" is a "dispossession" of any of the "rights" of possession, use, and disposition that property embodies. 25 As the previously analyzed definitions of "property" indicate, such a "dispossession" or "seizure” may be read to mean a "diminution", "deprivation", or "disturbance" of property rights. While takings could be accomplished through eminent domain in the 18th century, "the restrictions imposed by regulation could sometimes amount to taking".

26

In sum, an examination of 18th century sources suggests what may have been meant by the term "taking" of "property": property is taken whenever any of the legally-protected rights to use, possess, or dispose of one's acquisitions are diminished, deprived, or disturbed. 27 This definition does not suggest that every interference (no matter how slight) in an individual's use of his property always constitutes a taking. Government actions that only very indirectly and tangentially affect property rights may perhaps be too attenuated or insufficiently material to rise to the level of takings. Furthermore, as the previous discussion demonstrates, uses of property that impinge on the rights of third parties are not legally-protected property rights. Accordingly, government action that prevents an individual from using his property in a manner that injures

24 S. Johnson, A Dictionary of the English Language (2d ed. 1755).

25 Our conclusion that a "taking" of "property" is a dispossession of any of the rights of property (not necessarily the "entire bundle" of property) follows from the fact that Blackstone referred to "free use, enjoyment, and disposal" as different elements of property, and from Madison's recognition that property "embraces every thing to which a man may... have a right".

26 F. McDonald, supra, at 20 (summarizing the impact of 18th century regulatory laws on property rights).

27 Alternatively, it might be argued that the term "taking" refers to the willful appropriation of property, on the ground that the synonym "seizure” (employed by Samuel Johnson) connotes willful, intentional conduct. According to this logic, the government would only be found to have "taken" property if it actually intended to do so; government actions that only incidentally (and unintentionally) diminished property values would not be takings. We have not, however, found any additional textual or historical evidence (apart from the possible reading that might be accorded the word "seizure") to support this alternative interpretation. Indeed, we believe that the terminology employed by Blackstone and Giles Jacob encompasses all interferences in property rights, intentional or not. Thus, we believe that the better interpretation does not limit the term "taking" to willful, intentional dispossessions of property.

others is not a "taking" of that individual's property. The prohibited use was not a "property right" of the individual.

C. The Treatment of Takings for a

"Non-Public Use"

The just compensation clause allows property to be taken for a "public use" when "just compensation" is paid. Before addressing the meaning of the terms "public use" and "just compensation," one should briefly address the status of those takings of property not covered by the clause: takings for a "non-public use." While the words of the takings clause are silent on the question of whether the federal government 28 may take property for a use that is "non-public", the better legal view would appear to be that it may not. After all, the federal government, as a government of enumerated powers, can act only where the constitution authorizes it to act and we are aware of no provision that would authorize a taking for private use.

This textual argument is supported by the framers' intent to create a just government and their view that takings for a "non-public use" were unjust actions that were beyond the scope of properly constituted governments. 29 For example, in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798), Justice Chase stated that

The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean A law that takes property from A. and gives it to B. . . . is against all reason and justice, for a people to entrust a legislature with

28 Because the just compensation clause, as part of the Fifth Amendment, applies only to the federal government, it refers only to takings made pursuant to that government's limited enumerated powers. The framers did not craft the just compensation clause as a limitation on state powers; the just compensation principle was not applied to the states until after the passage of the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) (Fourteenth Amendment's due process clause requires that a state's taking of property must be for a public use and must involve the payment of just compensation).

29 See F. McDonald, supra, at 22 (citing the widely recognized principle that the taking power could be exercised only for bona fide public purposes, not including governmentmandated transfers from one private party to another).

such powers; and, therefore, it cannot be presumed that they have done it.

James Madison, the just compensation clause's author, reasoned along somewhat similar lines in his essay on Property, published shortly after the ratification of the Bill of Rights:

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

30

This limited historical evidence is consistent with our textual analysis: (1) that the just compensation clause only allows the federal government (acting pursuant to its enumerated powers) to take property in a just manner (involving “just compensation") for a constitutionallyrecognized goal (a “public use”) and (2) that no other provision seems to authorize nonpublic takings. According to this view, any attempt by the government to take property for a purely private, "non-public use” would be void. We also note that this interpretation appears to be generally accepted by judges and legal scholars alike.

D. The Meaning of "Public Use"

We now must consider the meaning of "public use". This term was not specifically defined in 18th century legal commentaries or dictionaries. Accordingly, an analysis of the original meaning of this phrase should begin with a perusal of the meaning of the words "public" and "use".

Samuel Johnson's 18th century dictionary defined "public" as "belonging to a state or nation; not private... general... regarding not private interest, but the good of the community."31 Neither Johnson nor other 18th century sources we have examined define the term “use.” Nevertheless, we believe that a good approximation of that word's 18th century meaning can be gleaned from Noah Webster's 1828 American Dictionary of the English Language, as well as The Oxford English

30 J. Madison, Property, supra, at 267 (emphasis in the original).

31 S. Johnson, A Dictionary of the English Language (2nd ed. 1755).

Dictionary, which derives its definitions from historical sources. Webster defined "use" in its legal sense as "the benefit or profit of lands and tenements." 32 Citing Blackstone, The Oxford Dictionary defines "use" in its legal sense as "[t]he act or fact of using, holding, or possessing land or other property so as to derive revenue, profit, or other benefit from such."33 Putting these definitions together, the "public use" of property can be interpreted as meaning the beneficial employment of property in a manner that promotes the general good of the community mere private faction.

not of a

Historical information pertaining to the taking of property is consistent with the dictionary meaning of the phrase "public use”. According to one noted constitutional historian, the principle that a taking "could be exercised only for bona fide public purposes (hence government could not take property from one private party and give it to another private party)" was well-established in 18th century English and American law. 34 The Vermont Constitution of 1777, the Massachusetts Constitution of 1780, and the Northwest Ordinance of 1787, respectively, recognized that compensation should be paid whenever property was taken "for the use of the public", for "public uses", and for "public exigencies". 35

The acknowledgement of the "public use" principle must, however, be reconciled with the fact that eminent domain was frequently invoked to effect transfers between private parties in 18th century America:

32 N. Webster, American Dictionary of the English Language (1828) (reissued 1967).

35 See Vermont Constitution of 1777, reprinted in B. Poore, 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1859 (2nd ed. 1878) (hereinafter cited as "B. Poore"); ("whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money"); Massachusetts Convention of 1780, part I, art. X, reprinted in 1 B. Poore, supra, at 958; ("whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefore"); Northwest Ordinance of 1782, art. 2, reprinted in 32 Journals of the Continental Congress 340 (R. Hill ed. 1936) ("should the public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same").