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CHAPTER THIRTEEN PROPERTY IN RIGHTS For seventeenth-century English and eighteenth-century Americans to speak of civil rights as private property or an inheritance was not merely a convenience of expression, a borrowing of words from the common law that, passing into everyday use and becoming idioms, lost their legal connotations. Nor was it' a figure of speech, an analogy drawn to physical inheritances received from lineal ancestors or to material things to which a citizen became entitled at birth. When pamphleteers, politicians , or lawyers spoke of receiving liberties by birthright or of inheriting rights, they were thinking of intangible but real items actually obtained at birth and of real ancestors from whom one could inherit. If there was a difference, it was of degree, not of kind. A personal civil right claimed as a birthright or an inheritance, although truly property in the same sense as was land, chattels, and inchoate obligations, was a higher kind of property as it was a species of civil liberty and personal rights. John Cartwright expressed the idea when he quoted a "protest" against suspension of statutes. "A greater inheritance," he said, "descends to everyone of us from right, and the laws, than from our parents." A paragraph attributed to Lord Chancellor Somers was even more explicit. The two types of inheritance, he agreed, were the same in kind but not degree. 103 PROPERTY IN RIGHTS As the subjects of the King are born to lands and other things, so are they born to inherit and enjoy the laws of this realm, that so every man have an equal benefit by law. It is therefore called common right, and is a greater inheritance to every man than that which descends to him as heir, from his parents. Because thereby his goods, land, wife, children, his body, life, honor, and estimation are protected from injury and wrong. This common right is called the law of the subject, and the judges are sworn to execute justice (as my Lord Coke says) according to law and custom of England. All which do prove how justly the laws are called the great inheritances of every subject , and the inheritance of inheritances, without which inheritance we have no inheritance.l It might be thought that by the era of the American Revolution, seven decades after the Glorious Revolution and the advent of parliamentary supremacy, the concept of property in rights would have degenerated into a mere popularization, no longer used to explain constitutional reality. But to suppose that as fact is to suppose that by 1760 parliamentary supremacy was understood to mean parliamentary sovereignty. It may have in actual constitutional practice, but not yet in popular constitutional theory. Since people, including many lawyers, still believed that British government was not arbitrary, they still believed there were constitutional limits on legitimate power, one of which was the restraint inherent in the notion that rights were owned by the people and protected as property . Edmund Burke believed it, or at least sounded as if he did. "By a constitutional policy, working after the pattern of nature," he asserted, "we receive, we hold, we transmit our government and our privileges, in the same manner in which we enjoy and transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of providence, are handed down to us, and from us, in the same course and order." The same constitutional metaphor was repeated by Jean Louis De Lolme, the Swiss student of British government and author of the leading treatise on constitutional law to be published during the revolutionary era. Rights for the British were "an inheritance," he wrote. "[T]his right of inheritance is expressed in English by one word, (birth-right) the same as that which expresses the King's title to the Crown."2 De Lolme was explaining why lawyers conceptualized rights as property . That is the issue to which this chapter is addressed. First two minor if obvious points should be gotten out of the way: that the property-inrights concept was not a legal fiction and was not natural law. At least, eighteenth-century constitutional theorists who utilized the concept did not think it a fiction. Rights were incorporeal, but still property. To say they were owned was no more a legal fiction than to say today that to PROPERTY IN RIGHTS 105 sell a copyright is to transfer ownership, or to say that a chose in action is property. Moreover, it...

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