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Subject Area: Law
Topic: The American Revolution and Constitution

§ 136.: Limitation of the right of acquisition.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 136.

Limitation of the right of acquisition.—

One of the incidental rights of private property in lands is the right to acquire land. Land being the free gift of nature, the regulation of it by the government must be directed in the interest of all, and as everyone is guaranteed by the constitution the equal protection of the law, and inequality or partiality in the bestowal of privileges is prohibited, everyone may be said to have an indefeasible right to acquire land, by complying with the general laws, which have been enacted for regulating its disposition. As long as there is a public domain, everyone has a right to buy of the government, if he pays the price asked for the land. But where all the public lands have been taken up, the only way left open for the subsequent acquisition of land is by purchase from other private owners. If no one is willing to sell, one’s right to acquire lands has in no way been violated. But if a seller can be found, any law which would interfere with the purchase, that is, prohibit a particular person or class of persons from acquiring any property in land whatever, would be an unconstitutional violation of a right which belongs to every citizen. Thus an ordinance was held to be unconstitutional by the Supreme Court of Texas, which absolutely prohibited any prostitute or lewd woman from residing in, or inhabiting any room, house, or place in the city, and forbade the leasing of any such premises to such a person.1 Even a chronic breaker of the laws has a right to possess a lodging-house. He has no right to purchase or lease a house for the purpose of prosecuting his criminal or nefarious trade; but even though it is a moral certainty that the criminal will use the house or room he occupies for immoral or criminal purposes, he can not be deprived of the use of said room or house as a lodging-house. The citizen has a constitutional right to acquire a local habitation, and no law can impose an absolute prohibition.

It is true that if the Christian principle of the universal brotherhood of man were recognized as a principle of constitutional and international law, and nations merely considered as convenient and subordinate subdivisions of this world-wide brotherhood, we would accord to the alien, as well as to the citizen, the equal right to acquire a homestead within our borders. But this principle of Christianity has never been adopted into our law, or into the law of any nation, civilized or uncivilized. On the contrary, international law is constructed on the idea of nationality as a cornerstone. The nations of the world are recognized by international law as distinct and independent political entities, having exclusive control over the country and people within their borders, and owing nothing to the people living outside of their jurisdictions. Although an alien born is entitled to the equal protection of the laws, instituted for the benefit of the citizen, while he is sojourning in the country, he has no absolute right to come into our country or to remain there. Unlike the citizen, he can at any moment be compelled to leave,1 with or without cause, unless he has acquired a right of ingress under a treaty with his own government. The alien, therefore, cannot be considered as having any absolute right to purchase or acquire lands.

It has long been the policy of England and of the States of this country to deny to the alien the right to hold lands within their borders. In many of the Western States, statutes have been passed granting to the alien the unlimited right to purchase and hold lands, and many millions of acres are now the property of foreign capitalists, who have never lived in this country and never expect to.

But while an absolute prohibition against the acquisition of lands by a particular person or class of persons would be unconstitutional, it would not be impossible to impose limitations upon the quantity of land which any one person may own. The agrarian evil, known under the name of “landlordism,” resulting from the concentration of lands into the hands of a relative few, and the formation of large farms, is one that will threaten every community at some stage of its political existence. It may be considered by some, with some show of reason, to be questionable, whether the situation would be improved by a statute, which prohibited any one person from holding more than a given quantity of land; but no serious constitutional objection can be raised to such legislation. It would certainly be a constitutional exercise of police power, as long as it was not made to operate against vested rights, by making void the purchase of lands that have already been completed.1 In New York there is a constitutional prohibition of agricultural leases for a longer period than twelve years.2 Applied to future purchasers, although it provides for the confiscation without compensation of the lands acquired in excess of the quantity allowed by law, the law would most unquestionably be constitutional.

When it is said that the citizen has a natural right to acquire a certain quantity of land for lawful purposes, domestic corporations are not included under that term. It is probably true that corporations already created with the power to purchase lands, whose charters are not subject to repeal by the legislature, have as indefeasible a right to purchase lands as the natural person; but statutes of mortmain may, subject to this exception, be passed, prohibiting absolutely the acquisition of lands by corporations. The rights and powers of a corporation depend altogether upon the will of the legislature.

[1]Milliken v. City Council, 54 Texas, 388 (38 Am. Rep. 629).

[1]See ante, § 57.

[1]As to the right of expropriation, see post, § 141.

[2]Clark v. Barnes, 70 N. Y. 301 (32 Am. Rep. 306).