How a case from 1606 answers an upcoming Supreme Court question about just compensation
In 1606, Britain was in a state of perpetual defense. The nearly 20-year Anglo-Spanish war had finally ended two years prior, and the Crown was eager to rebuild his now-depleted resources. If the war had taught him anything, it was how quickly England could be attacked. Military readiness wasn’t just prudent—it was necessary.
Foreign threats aside, the King had domestic concerns as well. In the infamous Gunpowder Plot of 1605, a group of radical Catholic conspirators got uncomfortably close to blowing up Parliament with an explosion meant to take out both houses, along with the King.
One thing was clear: The Crown needed to be ready to defend itself. And to meet those ends, he would need a robust supply of the most important defense tool—gunpowder.
Gunpowder requires three essential ingredients: charcoal, sulfur, and saltpetre. Saltpetre is a naturally forming chemical compound—potassium nitrate—that gives gunpowder its explosive properties. Without it, the guns and cannons that make wars winnable would merely go out with a fizzle instead of a bang.
Saltpetre was essential for national security, and for well over a century, kings had enlisted “saltpetre men” as the official scavengers of the explosive ingredient.
Saltpetre develops slowly over time where animal waste, decaying organic material, and moisture have time to build nitrates. The most obvious places to begin searching were underneath floorboards, in urine-soaked barns, and in corners or inside the walls of old or crumbling masonry structures.
These routine searches for saltpetre created problems for property owners. The saltpetre men would show up unannounced and begin tearing up floorboards in homes, prying into the floors of barns and stables, scraping the insides of masonry walls, and digging into cellars, vaults, and soil.
No respect was paid to the property being searched. Wherever the saltpetre men went, disorder and destruction followed. Floors were left uneven, homes were left structurally unsound, and holes in walls created drafts and ushered in unwanted moisture. Eventually, the people grew tired of being forced to grin and bear these intrusive and unpredictable searches.
The courts encountered an increasing number of trespassing suits brought against saltpeter men. Under English common law, unauthorized entry onto a person’s land was considered trespassing, even for royal officers. The saltpetre men, however, argued that because they were acting under the King’s commission to search for a public necessity, they were not trespassing.
Eventually, the Court of King’s Bench was forced to address the broader issue, to decide if there should be limitations on saltpetre searches. The Saltpetre case would become one of the most important legal applications of Magna Carta-style property rights protections.
Edward Coke
The matter was resolved by all the senior common law judges, but it was Chief Justice of Common Pleas Edward Coke’s report that became canonical.
Coke’s report had two separate ideas. First, necessity can justify entry. Because saltpetre was vital to national defense, the King’s men could enter private property, but only in a limited fashion. They were allowed to search for saltpetre—and only saltpetre—between sunrise and sunset. The visits should last only for a reasonable amount of time and the men were not to return to the same property again until after an appropriate amount of time had passed.
The second idea in Coke’s report is of particular significance to modern U.S. property law. While necessity can justify limited entry, it cannot justify permanent loss. In Coke’s words, “The King’s servants must make the places as commodious to the owner as they were before.” In other words, the saltpetre men could not tear through property with reckless abandon and then leave it in a state of disrepair. They must “leave the inheritance of the Subject in so good Plight as they found it.”
Coke’s simple instructions to “put things back the way you found them” was an articulation of the principle of just compensation—the government’s duty to make a person whole. And his use of the word “inheritance” is especially important here. While the principle itself had been around since Magna Carta, Coke solidified its role in the protection of property.
Making a person whole didn’t just mean restoring floorboards or repairing damage left by a temporary inconvenience. By “inheritance,” Coke meant to protect the enduring interest in the property as it exists over time. The concern was not the saltpetre men’s temporary intrusion, but what remained after they left. The rule Coke articulated ensured that public ends would not be pursued by shifting lasting costs onto individual property owners.
This reasoning became the heart and soul of the Constitution’s Takings Clause 185 years later.
The Takings Clause today
The Constitution’s Fifth Amendment says that there are instances where the government may take property—either through temporary occupation or seizure—if it is for public use. But, echoing Coke’s commentary, the Takings Clause makes clear that private property cannot be taken for public use “without just compensation.” This compensation must be based on the owner’s loss and not the government’s gain. To put it in 1606 terms, the necessity of saltpetre does not justify a loss of inheritance.
In modern U.S. property law terms: If the government thinks it is in the public’s best interest to seize a person’s home to expand a road, it can do so. But the Supreme Court explained that the Constitution decreed that a property owner must be put in “as good a position pecuniarily as he would have been if his property had not been taken.” If the home is seized to build a road, the Constitution requires the government to pay fair market value, as of the date of the take, for the property.
But not all takings look like road expansions.
Tax collection is also seen as a form of “public use.” If a person fails to pay their property taxes, the government is allowed to seize property—like a home—to satisfy the debt. But the government must adhere to the limitations of the Takings Clause. If the debt is for $2,000 and the home is worth $40,000, the government must return $38,000 to the property owner. Anything less would be robbing the property owner of their inheritance. In Pacific Legal Foundation’s 2023 case Tyler v. Hennepin County, the Supreme Court unanimously agreed that home equity theft is unconstitutional.
The landmark property rights victory in Tyler was built on Saltpetre’s foundation. Later this month, PLF will bring another home equity case, Pung v. Isabella County, to the Supreme Court, this time specifically citing Saltpetre in our brief.
In Pung, Isabella County, Michigan, seized a home valued at around $200,000 to satisfy a disputed $2,000 tax debt. It then sold the home at a fire-sale price of $76,000. Initially, the government kept every cent from the sale until the lower court ruled it an unconstitutional taking and ordered the County to return the approximately $74,000 left over to the property owner after the debt was paid.
In other home equity theft cases, like Tyler, the value and sale prices of the homes were not an issue. The same cannot be said for Pung. No one disputes that the property in question was worth $200,000, yet the government chose to sell it at a price far below its actual fair market value, leaving $118,000 in uncompensated equity on the table that vanished at auction.
Can the government legitimately claim that it left the “inheritance of the Subject in so good Plight as they found it” if the property owner was only compensated based on the artificially low auction price and not the actual value of the property? PLF doesn’t think so, and based on his Saltpetre report, it is not wildly speculative to believe that Edward Coke would agree.
Pung is not asking the Court to create any new theory or test. The answers to the questions being asked in Pung are already spelled out in Coke’s immortal words.
A great deal has changed since 1606, but one thing most certainly remains: Governments—whether kings or counties—cannot take a person’s property without making them whole through just compensation, based on the owner’s loss and not the government’s gain. This was as true in Saltpetre as it is in Pung.
