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contravened the takings clause of the Fifth Amendment, which stated that "private
property shall not be taken for public use without just compensation."12
The case was heard before the Supreme Court on February 11, 1833.13 On the
advice of the Court, Barren's attorneys "confined their argument to the question" of
whether the Fifth Amendment was applicable in this instance and thus whether the
Supreme Court actually "had jurisdiction of the case." Representing Barron, Charles F.
Mayer explained the grounds for appeal by positing that Barren's wharf represented "a
vested interest and incorporeal hereditament" and as such "was inviolable even by the
state, except upon just compensation for the privation." In describing the wharf both as a
vested interest and as an incorporeal hereditament, Mayer appealed for compensation not
only for the tangible property of the wharf (land and water) but for the profits as a means
of subsistence as well. He contended that "the benefit of this property [was] taken away .
. . for an object of public interest." Furthermore, he pointed out that the city had not only
admitted to this action, they had based their defense upon it. The Court stopped
Baltimore's attorneys, Taney and Scott, before they began their pleadings in an action
signaling its foremost concern for settling the question of jurisdiction. Yet because
Barren's appeal was based on a perceived entitlement to compensation from the Fifth
Amendment the question of jurisdiction became entwined with the assumptions of
absolute property and republicanism.14
12
7 Peters 245-246.
13 Only six of the seven justices appointed were present during the 1833 term. Justice Henry Baldwin was
absent suffering from what Daniel Webster termed "an alienation of the mind." See the letter of Webster to
Joseph Story, December 27, 1832 in the Proceedings of the Massachusetts Historical Society (January
1901), 409.
14
7 Peters 245-246.
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