Coke – he’s the real thing.

One of the great things about teaching at the William and Mary Law School (and there are many) is that it houses the original law book collection of George Wythe, “the first American law professor.” He is the O.G. Lawprof, both at W&M, and in the United States (they even half-named the school for him). And he had some good books. More on that in a second. 

So in class yesterday, we were discussing things like the Virginia Declaration of Rights, state constitutional protection of property, and cases like Boom Co. v. Patterson, 98 U.S. 403 (1897).  By the time Patterson gets decided, most states and the U.S. Constitution had “takings” clauses, express text which limits the sovereign’s power to take property. But it wasn’t always that way. The Virginia Declaration, which formed the basis for the Declaration of Independence, doesn’t mention takings, and indeed, only mentions “property” a grand total of three times. Many states initially did not have takings clauses, and indeed today, a couple of states still lack a provision expressly conditioning the sovereign’s power to take private property on the taking being for public use, and upon the payment of just compensation. North Carolina may be the most prominent example.  

Our discussion ended up with us asking: if there wasn’t a “takings clause” in the U.S or in state constitutions, would that mean the sovereign could take property with impunity for any use, with no compensation imperative? Of course not.

Maybe the first (recorded) recognition of the limits of the sovereign’s power is thanks to Sir Edward Coke. You remember him, the guy who gave us that black letter rule about your home being your castle. See Semayne’s Case 5 Coke Rep. 91 (1604) (“the house of every one is to him as his castle and fortress …”). Solid, My Lord.

Well, he didn’t stop there. In The Case of the King’s Prerogative in Salt-peter, 12 Coke R. 13 (1606) (aka the Saltpetre case), Sir Edward reported (for the entire court, una voce), that yes, the King’s men could come to someone’s property or home and obtain saltpeter, which was an essential component of gunpowder.  

Apparently, “saltpeter men” went after the stuff aggressively, and didn’t ask nicely. Exercising royal warrants, they dug up the floors of homes, barns, stables, and outhouses, appropriated carts to haul the stuff away, never repairing what they damaged, and not paying for the damage or the mined saltpeter. They sound even less popular than gong farmers

A case arose. Or, maybe more accurately, it looks like the Justices rendered what we’d call an advisory opinion. Sir Edward, as the Chief Justice of the Court of Common Pleas, reported that he and his fellow Justices agreed that the King possessed the prerogative to enter, locate, and haul away saltpeter. It was necessary for the national defense. It couldn’t (or shouldn’t) be purchased offshore (they might cut the supply off). Only Good Olde English saltpeter would do.

The power of the King to enter property and appropriate saltpeter for the defense of the realm is inherent in sovereignty:

it is an Incident inseparable to the Crown, and cannot be granted, demised, or transferred to any other, but ought to be taken only by the Ministers of the King[.]

12 Coke R. at C2. 

But (and here’s the enduring part of case report), the sovereign’s right is conditioned on two things.

First, property owners are entitled to be put in the same position they were in before the saltpeter man came knocking:

Yet it was resolved, that he may dig for Salt-peter, for this that the Ministers of the King who dig for Salt-peter, are bound to leave the Inheritance of the Subject in so good Plight as they found it[.]

12 Coke at C1. Sounds a lot like “the full and perfect equivalent” and “the owner shall be put in as good position pecuniarily as he would have been if his property had not been taken.” Seaboard Air Line Ry. v. United States, 261 U.S. 299 (1923). 

Second, the King’ saltpeter men couldn’t just come in and do what they pleased. The royal exercise of the prerogative was limited. 

The Ministers of the King cannot undermine, weaken, or impair any of the Walls or Foundation of any Houses, be they Mansion-houses, or Out-houses, or Barns, Stables, Dovehouses, Mills, or any other Buildings: And they cannot dig in the Floor of any Mansion-house which serves for the Habitation of Man; for this, that my House is the safest Place for my Refuge, Safety, and Comfort, and all of my Family; as well in Sickness as in Health, and it is my Defence in the Night and in the Day, against Felons, Misdoers, and harmful Animals; and it is very necessary for the Weal publick, that the Habitation of Subjects be preserved and maintained. 

Id. at C3. Take that, Mifdoer saltpeter men! (And yes, we know we eliminated the medial S in the original quote above.)

It may be good to be the King, but the common law has long recognized limitations on the sovereign’s power. In other words — getting back to our earlier question (in the absence of a textual takings clause, could the sovereign simply do what it wants?) — the age-old answer is no. Thank you, Lord Coke.

Think about that next time someone says that “due process of law” does not include substantive rights. Whether you call it “substantive due process,” the “law of the land,” or as Lord Coke called it something the King “cannot” do, the notion has been around for a long, long time.     

We end this post with this: the entirety of Professor Wythe’s Coke Reports have been digitized and are online on the W&M Library site. That’s where we found this case report. There’s even a Wythepedia (cheeky, law library). Thanks to our keen librarians for tracking down the Saltpetre report. 

The Case of the King’s Prerogative in Salt-peter, 12 Coke R. 13 (1606)