Our thanks to the Volokh Conspiracy folks for their reminder that today is Magna Carta day. Not only that, but they have also posted the full text of that document. Reading it reminds us of two things. First, provisions of the Magna Carta are mostly devoted to protection of property rights. Most of that other good stuff concerning personal liberties hat we have enshrined in the Bill of Rights is conspicuous by its absence. So next time you hear someone extoll the virtues of that Great Charter, remind him of that fact.
Second, since this is a blog concerned primarily with eminent domain, we note the text of paragraph 39 of the Magna Carta, as follows:
“(39) No free man shall be seized or imprisoned, or stripped of his rights
or possessions, or outlawed or exiled, or deprived of his standing in any other
way, nor will we proceed with force against him, or send others to do so, except
by the lawful judgement of his equals or by the law of the land.”
So next time you hear someone go on about how there is no right to a trial by jury in eminent domain cases, because supposedly there was no such right in England when Seventh Amendment was adopted, remind him about that “lawful judgment of his equals” passage. To say nothing of more modern British law, discussed in DeKeyser’s Royal Hotel v. The King, a 1919 British Court of Appeal decisions that reviews British history on this point and concludes that eminent domain (or compulsory purchase) cases were tried to juries until at least 1845.