Cite as: 526 U. S. 687 (1999)
Opinion of Souter, J.
sub nomine in England is because the power is included, and the right to compensation lost, in the absolutism of Parliament. The only technical term approximating eminent domain is 'compulsory powers' as used in statutes granting to companies and associations the right to take private property for their use"). See also McNulty, The Power of "Compulsory Purchase" Under the Law of England, 21 Yale L. J. 639, 644-646 (1912). Thus, when Parliament made provision for compensation, it was free to prescribe whatever procedure it saw fit, and while the agency of a common law jury was sometimes chosen, very frequently other methods were adopted. See Blair, Federal Condemnation Proceedings and the Seventh Amendment, 41 Harv. L. Rev. 29, 32-36 (1928); id., at 36 ("[A]n ample basis exists in the parliamentary precedents for the conclusion that the common law sanctioned such diverse methods of assessment that no one method can be said to have been made imperative by the Seventh Amendment"). See also 1A J. Sackman, Nichols on Eminent Domain § 4.105[1], p. 4-115, and § 4.107, pp. 4-136 to 4-137 (rev. 3d ed. 1998) ("It had become the practice in almost all of the original thirteen states at the time when their constitutions were adopted, to refer the question of damages from the construction of [high]ways . . . to a commission of viewers or appraisers, generally three or five in number"); id., at 4-137 ("[I]t has been repeatedly held that when land is taken by authority of the United States, the damages may be ascertained by any impartial tribunal").
In sum, at the time of the framing the notion of regulatory taking or inverse condemnation was yet to be derived, the closest analogue to the then-unborn claim was that of direct condemnation, and the right to compensation for such direct takings carried with it no right to a jury trial, just as the jury right is foreign to it in the modern era. On accepted Seventh Amendment analysis, then, there is no reason to find a jury right either by direct analogy or for the sake of preserving the substance of any jury practice known to the law
739
Page: Index Previous 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 NextLast modified: October 4, 2007