The Myth of the Nomad in Property Law

Abstract

Sir William Blackstone's hyperbolic defense of the common law rights of Englishmen to private property,1 drawn from the immutable law of nature,2 was a comfort to conservative lawyers in the early American republic as a reasoned philosophical and legal defense of property against the uncertainties of John Locke's social contract.3 seeds of Jacksonian democracy, in which popular sovereignty went hand-in-hand with the people's self-evident right to the pursuit of happiness,4 threatened to relativize and erode the social position of the propertied class.5 In this situation American lawyers vigorously asserted absolute rights to property that could transcend the vagaries of politics. The title of our lands, wrote Jesse Root proudly in 1798, free, clear and absolute, and every proprietor of land is a prince in his own domains, and lord paramount of the fee.6 In the first decades of the Republic Blackstone's Commentaries was the principal sourcebook for American lawyers and judges to learn the common law of England.7 interpretations of Black-