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republican understanding of property and of property's relationship to government. Such
an understanding was not unreasonable nor was it atypical as it had been the orthodox
conception of property since the founding of the Republic.7
Significantly, the city of Baltimore neither challenged Barren's claims to his
property right nor denied responsibility for the damage that resulted from the civic
improvements. Nor did they offer any compensation to Barren. Rather, the city's
attorneys contended that the damage was a public nuisance that was not specifically or
individually directed against the wharf and that a ruling in favor of Barren would be
contrary to future development projects by the city.8 Speaking on behalf of the city, in a
private capacity, U. S. Attorney General Roger Taney argued that should Barren's cause
be sanctioned "improvements in the city must be arrested because no street [could] be
opened or graded without producing some injury to navigation at some point." Taney
depicted the case as a conflict between private and "public rights to property" and, in so
doing, inferred that the right to property was not pre-political but existed only through the
consent of the society-at-large. He posited that Barron's property claim in his wharf was
not an "exclusive right" but "it [was] qualified by the right which the public [had] in the
same thing." Thus Barron's property existed not only as an individual right, "but [was]
Government (Oxford: 1997). The intrinsic relationship between absolute property and republican
government was explicated most clearly in John Locke's Two Treatises on Government.
1 Gregory Alexander, Commodity and Propriety: Competing Visions of Property in American Legal
Thought, 1776-1970 (Chicago: 1997); and Jennifer Nedelsky, Private Property and the Limits of American
Constitutionalism (Chicago: 1990).
8 7 Peters 243 and Notes, 155-59. Baltimore was represented by John Scott and U.S. Attorney General
Roger Taney, who was not acting in his public capacity.
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