The term “eminent domain” was taken from a legal treatise written by the Dutch jurist Hugo Grotius in 1625. He used the term dominium eminens (Latin for supreme lordship) and described the power as follows:
The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property.
Prior to the 17th century, the concept of private property did not exist. Property was either owned by the king or owned in common. Both enclosure and the creation of large businesses gave rise to the concept of private property. Prior to the recognition of private property, the government pretty much took what it wanted. Private property made this more difficult to do. Eminent domain became a part of English common law, and it provided government with a tool to legally acquire property when it was needed for certain purposes.
Eminent domain became a part of the United States Constitution. The Fifth Amendment states that “No person shall be … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This has been a source of controversy ever since.
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