THE RIGHT TO THE PURSUIT
The chase authorizes the trespass. That is the entire content of a pursuit right, and the party already standing on the ground is not among its parties.
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Take the phrase apart and it confesses twice in three words.
Happiness is hap: chance, luck, fortune, what befalls. The same root carries mishap, haphazard, perhaps, happenstance. The word named what came to a creature and not what a creature obtained, which is gift-grammar, and to pursue what arrives by hap is a category error at the level of the word. The phrase converts what befalls into what is hunted.
Pursuit is prosequi, to follow after, to chase. The same root gives prosecute. It is a hunting word that became a legal word without changing its operation, and the legal operation is specific: fresh pursuit, hot pursuit, the doctrine under which a party in chase may enter territory he could not otherwise enter. The chase authorizes the trespass. There is nothing else in a pursuit right.
The word has to be trespass and cannot be crossing, and the two are near opposites at the point where they look alike. Both name a boundary passed. The crossing is entered by yielding, has no license, and costs the one who enters it everything. The trespass is entered by license, costs the one who enters nothing, and costs everything to the one already standing there. A right that issues passage in advance is issuing the second and can never issue the first.
So the right constitutionalized is the right to chase what cannot be caught, into whatever territory the chase reaches.
[See PROPERTY · THE OCCUPATION]
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THE DELETION
Mason's Virginia Declaration of Rights, adopted 12 June 1776, Article I: the inherent rights include the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Three weeks later the pursuit is kept and the obtaining is struck.
What remains after the deletion is a right with no arrival in it. Not a right to be happy, not a right to have what is sought, not a right to reach a sufficiency and stop.
A right to chase, guaranteed, without terminus.
Non-satiation with a birth certificate.
The engine underneath is Locke's, and he states it plainly: the will is determined by the most pressing uneasiness. Deficit first, motion second, the void installed as the cause of the reaching. The founding vocabulary runs on the reversal, which is why the founding vocabulary can name the pursuit and cannot name what pursues.
[See THE EXPANSION · LOCKE • THE STORY OF DESIRE]
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THE SLOT
The Declaration reads life, liberty, and the pursuit of happiness. The Fifth Amendment reads life, liberty, or property. Same triad, third term restored.
The substitution was never a replacement. It was a phase. The Declaration names the motion; the Bill of Rights names the level; the apparatus holds both because both are required.
A right to pursue without arrival, and a right to keep without reduction. Due process guarantees that nothing already impounded is disturbed except by procedure. Just compensation guarantees that if it is disturbed the level is restored in money.
The pursuit clause licenses the pump. The takings clause builds the wall. This is not a figure laid over the instruments. It is the instruments stated in their own operation: a motion converted into a level, and a level defended, because a level is a height differential and a differential exists only while something holds it up.
[See CASTLE THEOLOGY · ASSETIZATION · WALLACH v TOWN OF DRYDEN]
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ROAD AND RAID
Raid and road are one Old English word.
Rād: a riding, a journey, an expedition, a hostile incursion, all of those senses undifferentiated in the single noun. The way in and the coming in armed were not two words, because they were not two events.
Then the word splits, and the split has a date. Raid falls out of use by the seventeenth century and stays dead in standard English through the entire period in which the instruments are drafted. Road carries on alone. Walter Scott revives raid in 1805, as an antiquarian border word about long-ago Scotsmen, after the century of the raids.
The language kept the way-in and dropped the incursion across exactly the span in which the incursion was being conducted and paperworked as improvement. This is not evidence of intent and does not need to be. It is the operation rendered in the vocabulary's own behavior: a word that meant both, keeping the innocent half while the other half was out riding.
[See LAUDABILITER · THE PAPAL BULLS · THE INSULAR CASES • WALTER SCOTT ]
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THE WARRANT
Governance presupposes incompetence. That is its entire warrant, and it is what makes the raid unnecessary to justify.
The pursuit right licenses the trespass. The incompetence presumption removes the prior occupant from the register of parties. Combine them and the raid does not have to be defended, because it does not appear as a raid. It appears as a road, and then as improvement, development, discovery, stewardship, each of which is the same trespass named by the trespasser.
Pursuit-grammar has no slot for a stationary party. It has a pursuer, a quarry, and a boundary the pursuer is licensed to breach. A prior occupant is none of the three. She is not pursuing, so she holds no right in this grammar. She is not the quarry, until the trespass reaches her. She is not the boundary, because the boundary is what the right dissolves. Residency does not pursue. Residency dwells. A framework of rights drawn for a moving party cannot register a party whose whole claim is that she is already here, and the failure is not an oversight in the drafting.
The improvement standard completes it in property form: land not being improved is land not held, and the prior occupant's title is void because her occupation does not look like the pursuit. The incompetence presumption and the labor theory are the same instrument, one stated as a disposition and one as a test.
The components are separable in the citations and they are one hand.
Locke supplies the deficit engine that sets the will in motion, the improvement standard that voids prior title in the uncultivated waste, and the triad of life, liberty, and estate that becomes the pursuit clause in one document and the property clause in the other. He drafted the Fundamental Constitutions of Carolina for the eight proprietors, carrying the article that every freeman of Carolina shall have absolute power and authority over his negro slaves, though whose sentiment that article carries is disputed in the manuscript scholarship and is stated here as disputed. In 1672 and 1673 Charles paid him in Royal African Company stock, which he sold in July 1675.
The philosophy, the property test, the incompetence presumption, and the shares. Not a hypocrisy to be noted beside the work. One instrument, assembled by one clerk, and the persons who became the property were carried by the company that paid him.
[See GOVERNANCE · TRESPASS THEOLOGY · MERIT]
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THE THING IS NOT A PARTY
An eminent domain proceeding runs in rem: against the thing.
The thing does not appear, does not testify, holds no standing, and cannot be made whole, because it is not among the parties who could be made whole. The parties are the state and the holder, and the subject of the proceeding is the level.
When the property is a person, she is not silenced in that proceeding. Silencing would require a position from which speech was withheld. She is absent from the grammar, in the same way the prior occupant is absent from the pursuit grammar. Not the pursuer, so no right. Not a party, so no compensation. She is the res.
Justice Taney states the whole architecture in one clause. An act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. He came himself or brought his property. The coming and the holding in one breath, joined by or as though they were interchangeable modes of one motion, which in this grammar they are. The due process clause is running affirmatively there, to protect a property in persons, and it carries the holding without assistance from any account of who counted.
The compensation asymmetry states the same geometry in money. District of Columbia, 16 April 1862: up to three hundred dollars paid to the holder for each person freed, and up to one hundred dollars paid to the freed person only on condition that she leave the country. The payment to the holder is compensation for a level reduced. The payment to the person compensates nothing; it is a removal fee, and the only circumstance in which the res receives money is the circumstance in which she exits the jurisdiction. The wall is rebuilt in the same appropriation that appeared to breach it.
Then the Thirteenth Amendment keeps the instrument and reverses its direction in one sentence. It abolishes the property form and preserves it: except as a punishment for crime whereof the party shall have been duly convicted. Duly convicted. Due process at the gate. The clause that ends property in persons retains property in persons and puts procedure in front of it, and the second direction has never stopped running.
[See SOMERSET v STEWART · THE PROPERTY KING · THE PRIOR OCCUPANT · ACCOUNTING THEOLOGY]
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The instruments did not require anyone to believe anything about who counted. They required a motion licensed to enter, a level licensed to be held, and a grammar in which the prior occupant is not among the parties. The accounts of inferiority are in the opinions, and they are vile, and they are decoration on results the clauses already produce. Strike every line of them and the property reasoning stands, which is why a century and a half of better accounts has left the in rem grammar untouched, the compensation running to holders, and the pursuit unarrived by construction.
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