Archive for December, 2012

The First Documented Eminent Domain Case?

December 27, 2012 Leave a comment

My days in the world of condemnation litigation are over, at least for now, but eminent domain issues are not going away anytime soon. See, e.g., here. The notion that a sovereign may take the property of its subjects is an old one, as well, likely as old as hierarchical societies themselves. Our modern vantage point probably obscures our view of the history of this dynamic given the development of the concept of property rights. At least some indigenous cultures had no concept of property rights whatsoever. Even in more developed civilizations, property ownership was not an accouterment of individuals’ initial conditions. Instead, broadening land ownership came as a result of slowly carving away the large holdings of the few.

The earliest exercise of eminent domain authority as we understand it today therefore could not happen until a society had developed to the point that it featured a significant group of private landowners and a sovereign that had at least some conception of limitations on its powers. Compensation, the component so central to our understanding of the exercise of eminent domain authority today, probably came along later, at least as in the nature of an explicit, formal transaction.

The Old Testament Book of Kings, divided into 1 Kings and 2 Kings, describes the approximately four hundred years of Israelite history ending roughly in 600 B.C. Chapter 21 of 1 Kings tells the story of King Ahab and Naboth, the owner of a vineyard near the king’s palace:

Some time later there was an incident involving a vineyard belonging to Naboth the Jezreelite. The vineyard was in Jezreel, close to the palace of Ahab king of Samaria. Ahab said to Naboth, “Let me have your vineyard to use for a vegetable garden, since it is close to my palace. In exchange I will give you a better vineyard or, if you prefer, I will pay you whatever it is worth.”

But Naboth replied, “The Lord forbid that I should give you the inheritance of my ancestors.”

So Ahab went home, sullen and angry because Naboth the Jezreelite had said, “I will not give you the inheritance of my ancestors.” He lay on his bed sulking and refused to eat.

1 Kings 21:1-4. Naboth’s response is the one virtually everyone gives upon first hearing that a government agency wants to take his or her property. The difference for Naboth is that his protest worked. While certain aspects of the scope of the eminent domain authority remain contested today, the government’s power of eminent domain is not subject to serious legal question. (It also is of some note that the interaction tracks modern condemnation law by beginning with an offer, rather than the simple execution of the taking, to acquire the land in exchange for equivalent property or the value of the subject property.)

Given the power dynamics of a premodern, divinely ordained monarchy, it probably is not surprising that Naboth’s bold affront to the king succeeded only temporarily. The story continues, as Ahab’s wife finds the king sulking:

His wife Jezebel came in and asked him, “Why are you so sullen? Why won’t you eat?”

He answered her, “Because I said to Naboth the Jezreelite, ‘Sell me your vineyard; or if you prefer, I will give you another vineyard in its place.’ But he said, ‘I will not give you my vineyard.’”

Jezebel his wife said, “Is this how you act as king over Israel? Get up and eat! Cheer up. I’ll get you the vineyard of Naboth the Jezreelite.”

So she wrote letters in Ahab’s name, placed his seal on them, and sent them to the elders and nobles who lived in Naboth’s city with him. In those letters she wrote:

“Proclaim a day of fasting and seat Naboth in a prominent place among the people. But seat two scoundrels opposite him and have them bring charges that he has cursed both God and the king. Then take him out and stone him to death.”

So the elders and nobles who lived in Naboth’s city did as Jezebel directed in the letters she had written to them. They proclaimed a fast and seated Naboth in a prominent place among the people. Then two scoundrels came and sat opposite him and brought charges against Naboth before the people, saying, “Naboth has cursed both God and the king.” So they took him outside the city and stoned him to death. Then they sent word to Jezebel: “Naboth has been stoned to death.”

As soon as Jezebel heard that Naboth had been stoned to death, she said to Ahab, “Get up and take possession of the vineyard of Naboth the Jezreelite that he refused to sell you. He is no longer alive, but dead.” When Ahab heard that Naboth was dead, he got up and went down to take possession of Naboth’s vineyard.

1 Kings 21:5-16. Easy enough, it ultimately appears, for the sovereign in this case.

While some may believe that, had Naboth been aware of all of the terms of Ahab’s offer, Naboth would have seen it as one he could not refuse, others may see it as a precursor to the Lockean-American notion that a government’s deprivation of one’s life is on par with a government’s deprivation of one’s liberty or one’s property.

Jezebel earned herself a generally negative reputation for behavior like that depicted in the above-quoted story, but, at least in the case of Naboth, she may have been nothing more than a student of history. Cf. 2 Samuel 11 (telling the story of King David, Bathsheba, and Uriah).

As for Ahab (and Jezebel) and the feeling that the end result here is a deeply unjust one, there is some divine, and moderately gruesome, justice to be had. See 1 Kings 21:17-29see also 2 Kings 9:30-36. It is unclear whether such results obtain today.

Categories: Legal