which entails a complete relinquishment of the right to the care, custody, and earnings of such child, and a repudiation of parental obligations. The emancipation may be express—pursuant to a voluntary agreement between parent and child—or implied from conduct that denotes consent. It may be absolute or conditional, total or partial. A partial emancipation disengages a child for only a portion of the period of minority, or from only a particular aspect of the parent’s rights or duties. There is no determinate age when a child becomes emancipated; it usually, but not automatically, occurs upon the attainment of the AGE OF MAJORITY. CROSS REFERENCE Parent and Child. EMANCIPATION PROCLAMATION The Emancipation Proclamation, formally is- sued on January 1, 1863, by President ABRAHAM LINCOLN is often mistakenly praised as the legal instrument that ended slavery—actually, the THIRTEENTH AMENDMENT to the Constitution, ratified in December 1865, outlawed SLAVERY. But the proclamation is justifiably celebrated as a significant step toward the goal of ending slavery and making African Americans equal citizens of the United States. Coming as it did in the midst of the Civil War (1861–65), the proclamation announced to the CONFEDERACY and the world that the ABOLITION of slavery had become an important goal of the North in its fight against the rebellious states of the South. The document also marked a shift in Lincoln’s mind toward support for emancipation. Just before signing the final document in 1863, Lincoln said, “I never, in my life, felt more certain that I was doing right than I do in signing this paper.” In the text of the proclamation—which is almost entirely the work of Lincoln himself— Lincoln characterizes his order as “an act of justice, warranted by the Constitution upon military necessity.” These words capture the essential character of Lincoln’s work in the document. On the one hand, he perceived the proclamation as a kind of military tactic that would aid the Union in its difficult struggle against the Confederacy. As such, it was an extraordinary measure that carried the force of law under the powers granted by the Constitution to the president as commander in chief of the U.S. military forces. But on the other hand, Lincoln saw the proclamation as “an act of justice” that announced the intention of the North to free the slaves. In this respect, it became an important statement of the intent to abolish slavery in the United States once and for all, as well as a vital symbol of human freedom to later generations. Lincoln had not always regarded emancipa- tion as a goal of the Civil War. In fact, he actively resisted emancipation efforts early in the war, as when he voided earlier emancipation proclamations issued by the Union generals John C. Frémont and David Hunter in their military districts. Lincoln also failed to enforce provisions passed by Congress in 1861 and 1862 that called for the confisc ation and emancipa- tion of slaves owned by persons supporting the rebellion. Antislavery sentiment in the North, how- ever, grew in intensity during the course of the Civil War. By the summer of 1862, with the Union faring poorly in the conflict, Lincoln had begun to formulate the ideas he would eventu- ally express in the proclamation. In particular, he reasoned that ema ncipation would work to the military advantage of the North by creating a labor shortage for the Confederacy and providing additional troops for the Union. While Lincoln was increasingly sympathetic to abolitionists who wished to end slavery, he was reluctant to proclaim emancipation on a wider scale, out of fear that it would alienate the border slave states of Kentucky, Maryland, and Missouri, which had remained part of the Union. Already stung by military setbacks, Lincoln did not want to do anything to jeopardize the ultimate goal of victory in the war. Even if he had wished to proclaim emancipation on a wider scale, such an act probably would not have been constitutionally legitimate for the presiden cy. Lincoln’s cabinet was nervous about the effect of issuing the proclamation, and it advised him to wait until the Union had won a major victory before releasing it. As a result, the president announced the preliminary procla- mation on September 22, 1862, five days after the Union victory at the Battle of Antietam. In language that would be retained in the final version of the proclamation, this preliminary order declared that on January 1, 1863, all the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMANCIPATION PROCLAMATION 129 slaves in the part s of the country still in rebellion “shall be … thenceforward and forever, free.” It also pledged that “the executive government of the United States, including the military … will recognize and maintain the freedom” of ex-slaves. But this preliminary proclamation also contained language that was not included in the final document. For example, it recommended that slave owners who had remained loyal to the Union be compensated for the loss of their slaves. The final version of the proclamation specified the regions still held by the Confeder- acy in which emancipation would apply: all parts of Arkansas, Texas, Mississippi, Alabama, Florida, Georgia, South Carolina, and North Carolina, and parts of Louisiana and Virginia. It also asked that freed slaves “abstain from all violence” and announced that those “of suitable condition will be received into the armed service of the United States.” This last provision led to a significant practical effect of the proclamation: By 1865, more than 190,000 African Americans had joined the U.S. ARMED SERVICES in the fight against the Confederacy. News and copies of the proclamation quickly spread through the country, causing many people, especially African Americans, to celebrate. At one ga thering, the African American abolitionist FREDERICK DOUGLASS made a speech in which he pronounced the procla- mation the first step on the part of the nation in its departure from the SERVITUDE of the age s. In following years, many African Americans would continue to celebrate the anniversary of the signing of the proclamation. However, many abolitionists were dis- appointed with the limited nature of the proclamation. They called for complete and immediate emancipation throughout the entire country, and they criticized the proclamation as the product of military necessity rather than moral idealism. Although the practical effects of the procla- mation were quite limited, it did serve as an important symbol that the North now intended not only to preserve the Union but also to abolish the practice of slavery. For Lincoln, the proclamation marked an important step in his eventual support of complete emancipation. Later, he would propose that the REPUBLICAN PARTY include in its 1864 platform a plank calling for the abolition of slavery by CONSTITU- TIONAL AMENDMENT , and he would sign the Thirteenth Amendment in early 1865. The copy of the proclamation that Lincoln wrote by hand and signed on January 1, 1863, was destroyed in a fire in 1871. Early drafts and This engraving depicts the first reading of the Emancipation Proclamation before President Abraham Lincoln’s cabinet in 1862. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 130 EMANCIPATION PROCLAMATION copies of the original, including the official government copy derived from Lincoln’sown, are held at the National Archives, in Washing- ton, D.C. FURTHER READINGS Franklin, John Hope. 1995. The Emancipation Proclamation. Arlington Hts, IL: Harlan Davidson. Guelzo, Allen C. 2006. Lincoln’s Emancipation Proclamation: The End of Slavery in America. New York: Simon & Schuster. Klingaman, William K. 2001. Abraham Lincoln and the Road to Emancipation, 1861–1865. New York: Viking. Levinson, Sanford. 2001. “Was the Emancipation Pro- clamation Constitutional? Do We/Should We Care What the Answer Was?” Univ. of Illinois Law Review (October). The Emancipation Proclamation: Milestone Documents in the National Archives. 1993. National Archives and Records Administration. CROSS REFERENCE “Emancipation Proclamation” (Appendix, Primary Document). EMBARGO A proclamation or order of government, usually issued in time of war or threatened hostilities, prohibiting the departure of ships or goods from some or all ports until further order. Government order prohibiting commercial trade with indivi- duals or businesses of other specified nations. Legal prohibition on commerce. The temporary or permanent sequestration of the property of individuals for the purposes of a government, e.g., to obtain vessels for the transport of troops, the owners being reimbursed for this forced service. EMBARGO ACT A legislative measure enacted by Congress in 1807 at the behest of President Thomas Jefferson that banned trade between U.S. ports and foreign nations. The Embargo Act was intended to use economic pressure to compel England and France to remove restrictions on commercial trading with neutral nations that they imposed in their warfare with each other. Napoleon decreed under his Continental system that no ally of France or any neutral nation could trade with Great Britain, in order to destroy the English economy. In retaliation, England caused a blockade of the northern European coastline, affecting nations that had remained neutral in the dispute between France and England. These vindictive measures hurt neutral American traders, prompting Congress to take action to safeguard the economic interests of the United States. The first enactment was the Nonimportation Act of 1806 (2 Stat. 379), which prohibited the import of des ignated English goods to stop the harsh treatment of American ships caught running the blockade. The Embargo Act of 1807 (2 Stat. 451) superseded this enactment and expanded the prohibition against international trade to all nations. A later amendment in 1809 (2 Stat. 506) extended the ban from American ports to inland waters and overland transactions, there- by stopping trade with Canada, and mandated strict enforcement of its provisions. The American public opposed the act, particularly those segments dependent upon international trade for their livelihoods. This opposition eventually led to the enactment of the Non-Intercourse Act (2 Stat. 528 [1809]), which superseded the stringent provisions of the Embargo Act. Under that act, only trade with England and France was proscribed, but the measure was ineffectual. Subsequently, in 1810 Nathaniel Macon proposed a measure, called Macon’sBillNo.2, which Congress enacted despite solid Federalist opposition, that empowered the president to resume commerce with the warring nation that lifts its restrictions on neutral trade. EMBEZZLEMENT The fraudulent conversion of another’s property by a person who is in a position of trust, such as an agent or employee. Embezzlement is distinguished from swin- dling in that swindling involves wrongfully obtaining property by a false pretense, such as a lie or trick, at the time the property is transferred, which induces the victim to transfer to the wrongdoer title to the property. Nature There was no crime of embezzlement under the COMMON LAW. It is a statutory crime that evolved from LARCENY. Whereas larceny requires a felonious trespassory taking of property at the outset, embezzlement is a wrongful appropria- tion subsequent to an originally lawful taking. Embezzlement is, therefore, a modification of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMBEZZLEMENT 131 larceny designed to cover certain fraudulent acts that do not come within its scope. Although they are mutually exclusive crimes, larceny and embezzlement do overlap slightly under statutes in some states. Embezzlement was created by the English legislature, which designated specific persons who might be liable for the offense. These were essentially persons entrusted with another’spro- perty, such as agents, attorneys, bankers, and corporate officers. The English definition of the offense is followed in the United States. Statutes do not usually list the persons who might be liable but, instead, generally describe the offender as a person entrusted with, or in possession of, another’s property. Property The type of property that must be converted is governed by statute. Generally, property is defined as including money, goods, chattels, or anything of value. Intangible PERSONAL PROPERTY ; COMMERCIAL PAPER, such as checks, promissory notes, bonds, or stocks; and written documents, such as deeds or contracts, may also be the subject of embezzlement. Under some statutes, property consists of anything that can be the subject of larceny. In other states, however, the property requirement for embezzlement is broader. For example, the statute might punish the conversion of both real and personal property. In some states, the embezzlement of public property or public funds is a separate offense. The offense is characterized by the manner in which the money is received. A court clerk who receives bail money is a recipient of public money and the person can be liable if such money is wrongfully converted by him or her. The property subject to embezzlement must have some value, even though value is not an element of the offense. Although a check without a required endorsement does not have value, the fact that the endorsement can be forged gives it sufficient value to make i t a subject of embezzlement. Elements Statutes governing the offense vary widely throughout the states. To determine exactly what elements comprise the offense, it is necessary to examine the particular statute applicable. Elements common to embezzlement are as follows: (1) the property must belong to a person other than the accused, such as an employer or principal; (2) the property must be converted subsequent to the defendant’s origi- nal and lawful possession of it; (3) the DEFENDANT must be in a position of trus t, so that the property is held by him or her pursuant to some fiduciary duty; and (4) the defendant must have an intent to DEFRAUD the owner at the time of the conversion. Ownership The principal or employer must be the owner of the property embezzled by an agent or employee at the time the offense is committed. Under many statutes, the owner- ship requirement is expressed as the property of another. It is sufficient if any person, other than the defendant, owns the property and it does not matter who has title to it or that it is owned by more than one person. Jurisdictions differ on the question of whether a person can embezzle funds belonging to a spouse. In states that retain the spousal privilege, a person can be prevented from testifying to a crime against a spouse; therefore, spousal embezzlement will not be pros ecuted. Unless a statute provides otherwise, co- owners of property, such as joint tenants or tenants in common, cannot be guilty of the offense with respect to the property that is jointly owned. A co-owner who wrongfully transfers jointly owned property converts his or her own property as opposed to that of another; ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. SOURCE: FBI, Crime in the United States, 2007. Persons Arrested for Embezzlement by Age, 2007 55 and over 2.5% 45–54 years old 9.3% Under 18 years old 7.6% 18–24 years old 38.7% 25–44 years old 41.9% GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 EMBEZZLEMENT therefore, there is no conversion. If a person has any interest in property held jointly with another, the person cannot be convicted of the offense relating to that property. For example, a co-owner of an automobile cannot be guilty of embezzling it if both owners have an equal right to possession. A number of states, however, have statutes punishing embezzlement by co- owners, such as partners who wrongfully con- vey partnership assets. In most states, an agent authorized to collect money for his or her principal and to keep a certain amount as commission is guilty of embezzlement if he or she wro ngfully transfers the entire sum collected. Possession or Custody of Property Posses- sion is the essential element for distinguishing between embezzlement and larceny. While larceny requires that the thief take the property out of the victim’s possession, the person must lawfully possess the property at the time that it is converted for embezzlement. It is not necessary for the defendant to have physical or exclusive possession. It is sufficient if the person has constructive possession, a form of possession that is not actual but that gives the holder power to exercise control over the property either directly or through another person. Alternatively, mere custody is insuffi- cient for embezzlement. If a master puts a servant in charge of property for purposes of guarding or caring for it, the master is considered to have constructive possession of such property while the servant has mere custody. A servant who wrongfully converts property over which he or she has custody may be guilty of larceny, but not embezzlement. The fact that an accused person lawfully receives property at different times will not negate an embezzlement charge provided all other elements of the offense are met. Trust Relationship Because the offense is aimed at punishing persons who convert property for their own use when possession is lawfully acquired, prosecution is limited to instances where the parties are in a fiduciary, or trust, relationship. Generally, a debtor and a creditor, or an agent and a broker, do not have a fiduciary relationship sufficient for the offense. There must be some further indication that one person has a duty to care for and exert some control over the other’s property. The most common type of trust relationships are those existing among corporate officers, partners, and employers and their employees. Conversion of Property Conversion is an act that interferes with an owner’s right of possession to his or her property. For purposes of embezzlement, con- version involves an unauthorized assumption of the right of ownership over another’s property. It may, for example, occur when a person is entrusted with property for one purpose and uses it for another purpose without the consent of the owner. Generally, any type of conversion that occurs after a person obtains lawful possession of property is sufficient. Although a failure to return property is evidence of conversion, it does not necessarily constitute embezzlement—absent proof of criminal intent. However, if a statute imposes an absolute duty to return property, the failure to do so is embezzlement, provided all other elements are met. In certain circumstances, a demand is required before a person can claim that his or her property has been converted. Usually, no demand is required if it would be futile, such as when an accused has fled the jurisdiction with the property. If, however, there is no definite time specified for the return of the property, a demand might be necessary. The demand is merely a request that the wrongdoer return the property. The request does not have to be formal, and there is no requirement that the word demand be used. When an agent is given authority to sell property and thereafter converts the proceeds of the sale, he or she is guilty of embezzlement of the proceeds, as distinguished from the property sold. A person with authority to cash a check but who converts the cash is, likewise, guilty of embezzlement of the cash and not of the check. The person, might, however, be guilty of embezzling the check if at the time of cashing it, the person has a fraudulent intent to convert it. Intent In a majority of jurisdictions, a fraudu- lent intent to deprive the owner of his or her property is necessary for embezzlement. It is characterized as intent to willfully and corruptly use or misapply another’s property for purposes other than those for which the property is held. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMBEZZLEMENT 133 The defendant’s motive is not relevant to the intent element. Although it is not essential that the intent exist at the time possession is first taken, it must be formed at the time the property is converted. The offense is not committed if there is an intent to return the specific property taken within a reasonable period of time. If, however, there is a fraudulent intent at the time the property is converted, a subsequently formed intent to return the property will not excuse the crime. An offer to restore the property will not bar a prosecution for embezzlement. Some courts have held, however, that an offer of restoration can be considered on the question of intent. A person who believes that the property to be transferred is his or hers is considered to act pursuant to a claim of right. The possibility that the belief is mistaken, or unreasonable, is not important. If one has a GOOD FAITH belief that one has a right to withhold property or devote it to one’s own use, the conversion cannot be fraudulent, and there is no embezzlement. The validity of a claim of right is a QUESTION OF FACT determined from CIRCUMSTANTIAL EVI- DENCE . It is not suffici ent if the person merely states he or she acted honestly. If circumstances evince that there was a willful and knowingly wrongful taking, a claim of right defense will not succeed. Persons Liable One or more persons may be guilty of embezzlement. If there is a conspiracy to embezzle, parties to the agreement are liable as principals. A person who aids and abets in the conversion can also be guilty of the offense. Punishment Because the offense is defined differently in several jurisdictions, the punishment for em- bezzlement can vary. Generally, the penalty is a fine, imprisonment, or both. Some states distinguish between grand embezzlement and petit embezzlement on the basis of the value of the property stolen. The former involves property of a greater value and is punishable as a felony, while the latter involves property of a lesser value and is punishable as a misdemeanor. FURTHER READINGS Frazer, Douglas H. 2002. “To Catch a Thief: Civil Strategies for Handling Embezzlement Cases.” The Wisconsin Lawyer 75 (February). Available online at http://www. wisbar.org/AM/Template.cfm?Section=Wisconsin_ Lawyer&TEMPLATE=/CM/ContentDisplay.cfm& CONTENTID=50234; website home page: http://www. wisbar.org (accessed July 21, 2009). Johnson, J. A., Jr. 2000. Thief: The Bizarre Story of Fugitive Financier Martin Frankel. New York: Lebhar-Friedman. Kahl, Leah A., and Peter C. Ismay. 1998. “Exceptions to Discharge of Fiduciary Fraud, Larceny, and Embezzle- ment.” Journal of Bankruptcy Law and Practice 7 (January-February). McClintick, David. 2002. Indecent Exposure: A True Story of Hollywood and Wall Street. New York: Harper Paperbacks. CROSS REFERENCES Fiduciary; Fraud; Joint Tenancy; Larceny; Tenancy in Common. EMBLEMENTS Crops annually produced by the labor of a tenant. Corn, wheat, rye, potatoes, garden vegetables, and other crops that are produced annually, not spontaneously, but by labor and industry. The doctrine of emblements denotes the right of a tenant to take and carry away, after the tenancy has ended, such annual products of the land as have resulted from the tenant’s care and labor. EMBRACERY The crime of attempting to influence a jury corruptly to one side or the other by promises, persuasions, entreaties, entertainments, and the like. The person guilty of it is called an embraceor. This is both a state and federal crime, and is commonly included under the offense of obstructing justice. In order for the offense of embracery to be committed, it is essential that the accused individual have an improper intent. If an individual makes statements that woul d be likely to influence the VERDICT of a juror while the individual is unaware that such juror is present, such conduct is not embracery. It is not generally a prerequisite for the juror to have been impaneled and sworn, provided the person’s name has been drawn and published as a juror or grand juror. The intent to influence a juror must be coupled with an attempt to use improper influence, which can be through word or conduct and is the only OVERT ACT necessary. T he juror can GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 134 EMBLEMENTS either be approached personally by the individual or through an agent. Words intended to influence a juror need not be spoken to the person directly but can be communicated in a manner designed to be overheard by the juror and prejudice his or her decision. A party to the action, an individual undergoing GRAND JURY investigation, a witness, or an individual who has no connection with the proceeding can be charged with embracery. Because the crime of embracery itself only constitutes an attempt, there is no such crime as the attempt to commit embracery. It is, however, a crime to solicit another to commit embracery. Embracery is punishable by a fine, imprison- ment, or both, depending upon statute. EMBRYONIC STEM CELL RESEARCH See FETAL TISSUE RESEARCH. EMERGENCY DOCTRINE A principle that allows individuals to take action in the face of a sudden or urgent need for aid, without being subject to normal standards of reasonable care. Also called imminent peril doctrine, or sudden peril doctrine. The emergency doctrine allows people to act in critical situations that call for quick action—a fire, an automobile crash, a collapsing building— without danger of recrimination. An example of someone who might be covered under the emergency doctrine is a person who performs cardiopulmonary resuscitation on a heart attack victim and in so doing breaks several of the victim’s ribs. Another example is when a driver, surprised by a pedestrian who steps out from between two parked cars, swerves to miss the pedestrian but then hits another car. The emergency doctrine also covers situa- tions in which an individual acted in GOOD FAITH when disaster seemed imminent even though ultimately it was not. There is, however, a fine distinction between the emergency doctrine and the RESCUE DOCTRINE, which requires that one who places a person in peril or in a situation with the appearance of imminent peril owes a duty of reasonable care to one attempting to rescue the person from the peril or appearance of peril. In Harris v. Oaks Shopping Center, Cal. App. 4th 206 (1999), a sand sculpture being installed in a mall appeared to be about to collapse. Harris, a mall employee, rushed over to push a woman and her small child out of the way. In his rush, he fell and injured his back. He filed suit, but the jury found that because the sculpture did not fall, there was no imminent danger; moreover, there was no evidence of NEGLIGENCE on the part of the mall or the sand sculptors. Harris appealed, stating that the j ury should have been instructed that because he acted on what he saw as an imminent threat, he had no obligation to prove actual negligence. He reasonably believed that the sculpture was about to co llapse. The appellate court agreed and sent the case back to trial court for a new trial, in which the jury was to consider whether Harris acted reasonably under the circumstances. The court did, however, note that it was the rescue doctrine that applied in this case because the plaintiff’s injuries stemmed from the attempted rescue, not an actual collapsed struc ture. FURTHER READINGS Alexander, Ken, and Eric Wade. “Companies Prepare to Overcome Legal, Physical Effects of Disaster.” Houston Business Journal (October 26, 2001). Available online at http://houston.bizjournals.com/houston/stories/2001/ 10/29/focus3.html; website home page: http://houston. bizjournals.com (accessed July 21, 2009). Bradley, Craig M. 2006. “A Sensible Emergency Doctrine.” Trial 42 (August 1). Pedestrian Injury Legal Info Center. Available online at http://www.pedestrianinjury.com (accessed July 21, 2009). CROSS REFERENCE Good Samaritan Doctrine. EMIGRATION The act of moving from one country to another with in tention not to return. It is to be distinguished from expatriation, which means the abandonment of one’s country and renunciation of one’s citizen- ship in it, while emigration denotes merely the removal of person and property to another country. Expatriation is usually the consequence of emigra- tion. Emigration is also sometimes used in reference to the removal from one section to another of the same country. EMINENT DOMAIN Eminent domain is the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMINENT DOMAIN 135 Federal, state, and local governments may take private property through their power of eminent domain or may regulate it by exercis- ing their POLICE POWER. The FIFTH AMENDMENT to the U.S. Constitution requires the government to provide JUST COMPENSATION to the owner of the private property to be taken. A variety of property rights are subject to eminent domain, such as air, water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process. Eminent domain is a challenging area for the courts, which have struggled with the question of whether the regulation of property, rather than its acquisition, is a taking requiring just compensation. In addition, private property owners may also initiate actions against the government in a kind of proceeding called inverse condemnation. History The concept of eminent domain has existed since biblical times, when King Ahab of Samaria offered Naboth compensation for Naboth’s vineyard. In 1789, France officially recognized a property owner’s right to compensation for taken property, in the French Declaration of the Rights of Man and of the Citizen, which reads, “Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condi- tion of a just and previous indemnity.” Shortly after the French declaration, the United States acknowledged eminent domain in the Fifth Amendment to the Constitution, which states, “… nor shall private property be taken for public use, without just compensation.” The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the due process clause of the FOURTEENTH AMENDMENT makes the federal Emigration is the act of leaving one’s country to live somewhere else. These men emigrated from Italy to the United States in 1911. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 136 EMINENT DOMAIN guarantee of just compensation applicable to the states. State governments derive the power to initiate condemnation proceedings from their state constitutions, with the exception of North Carolina, which gains its power through statute. The constitutional and statutory provi- sions require federal, state, and local govern- ments and subdivisions of government to pay an owner for property taken for public use at the time the property is taken. The power of eminent domain was created to authorize the government or the condemning authority, called the condemnor, to conduct a compulsory sale of prop erty for the common welfare, such as health or safety. Just compen- sation is required, to ease the financial burden incurred by the property owner for the benefit of the public. Elements of Eminent Domain To exercise the power of eminent domain, the government must prove that the four elements set fo rth in the Fifth Amendment are present: (1) private property (2) must be taken (3) for public use (4) and with just compensation. These elements have been interp reted broadly. Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items. The rifle that was used to kill President JOHN F. KENNEDY was considered private property in an eminent domain proceeding. Taking The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents. Dirt, timber, or rock appropriated from an individual’s land for the construction of a highway is taken property for which the owner is entitled to compensation. In general, com- pensation must be paid when a restriction on the use of property is so extensiv e that it is tantamount to confiscation of the prop erty. Some property rights routinely receive constitutional protection, such as WATER RIGHTS. For example, if land is changed from waterfront to inland property by the construction of a highway on the shoreline, the owners of the affected property are to be compensated for their loss of use of the waterfront. Another PROPERTY RIGHT that is often litigated and routinely protected is the right to the reasonable and ordinary use of the space above privately owned land. Specifically, aircraft flights over private property that significantly interfere with the property owner’s use may amount to a taking. The flights will not be deemed a taking unless they are so low and so frequent as to create a direct and immediate interference with the owner ’s use and enjoy- ment of the property. Actions by the government that courts do not consider takings include the publication of plans or the plotting, locating, or laying out of public improvements, including streets, high- ways, and other public works, even though the publicity generated by such actions might hinder a sale of the land. The courts have traditionally not recognized the regulation of property by the government as a taking. Regulating property restricts the property owner’s use and may infringe on the owner’s rights. To imp l ement a regulation, the state exercises its police power and is able to control the use of the property. Although the Supreme Court recognized a regulation as a taking as early as 1922, the Court was inconsis- tent in its later rulings on this issue. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), the U.S. Supreme Court ruled that coal mining under an owner’s property was not a taking, despite a subsidence, or settling, of the property’s surface. In 1987 the Court stated that regulations that are excessive require compensation under the Fifth Amendment (First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 [1987]). In addition, the Court deter- mined that regulations that strip property of value or that do not substantially advance legitimate state interests are takings for which compensation is required (Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 [1987]). In a case examining a moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court decided that a moratorium on development is not necessarily a taking and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMINENT DOMAIN 137 1465, 152 L. Ed. 2d 517 (2002). In that case, the Tahoe Regional Planning Agency had imposed a moratorium on construction and development that lasted almost three years while the agency devised rules to protect the water quality of Lake Tahoe on the California-Nevada border. Some of the property owners sued, claiming that the moratorium constituted a categorical taking because they were deprived of all economically BENEFICIAL USE of the property during the period of the moratorium. In a 6–3 decision, the Court held that because the regulation was temporary, it could not constitute a categorical taking. Public Use The third element, public use, requires that the property taken be used to benefit the public rather than specific individuals. Whether a particular use is considered public is ordinarily a question to be determined by the courts. However, if the legislature has made a declaration about a specific public use, the courts will defer to legislative intent (Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 [1984]). Further, “[t]he legislature may determine what private property is needed for public purpose … but when the taking has been ordered, then the question of compensation is judicial” (Monongahela Naviga- tion Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 [1893]). To determine whether property has been taken for public use, the courts first determined whether the property was to be used by a broad segment of the general public. The definition of public use was later enlarged to include anything that benefited the public, such as trade centers, municipal civic centers, and airport expansions. The U.S. Supreme Court later expanded the definition of public use to include aesthetic considerations. In Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), the Court ruled that slums could be cleared in order to make a city more attractive. The Court in Berman stated further that it is within legislative power to determine whether a property can be condemned solely to beautify a community. State Courts have also expanded the defini- tion of public use. The Michigan Supreme Court allowe d property to be condemned for the private use of the General Motors Company, under the theory that the public would benefit from the economic revitalization a new plant would bring to the community (Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455 [1981] ). The Poletown decision was unusual because it was one of only a few cases in which a state government successfully invoked the power of eminent domain to transfer property from a private homeowner to another private entity on grounds that the transfer advanced the public purpose of economic revitaliz ation. The Poletown case was widely criticized in Michigan, and 23 years later the state’s high court overturned it in County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 (2004). The Michigan Supreme Court ruled that a generalized economic benefit of allev iating unemployment and revitalizing the economic base of a community is insufficient under the state constitut ion’s takings clause to justify the transfer of condemned property from one private party to another private party. The groundswell of opposition against Poletown in Michigan foreshadowed the national outcry over the U.S. Supreme Court’ s decision in KELO V. CITY OF NEW LONDON, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 2005. In 1990, the state of Connecticut declared the city of New London a “distressed muni- cipality,” due to high unemployment, an aging and decreasing population, and tax revenues insufficient to reverse these trends. State and local officials then targeted the city for econom- ic revitalization. Ten years later those officials submitted a development plan projected to create more than one thousand jobs, substan- tially increase tax revenues, and provide a fresh, upscale look to the downtown and waterfront areas. The development plan contemplated achieving those objectives by converting resi- dential neighborhoods into a business district that would house a waterfront conference hotel, research and development offices, a U.S. Coast Guard Museum, and a host of water-dependent commercial businesses. Additionally, some of the area would be dedicated to creating a fresher looking residential neighborhood with room for approximately 80 homes. Finally, ample parking space would be needed to accommodate the anticipated growth. To obtain the land needed for this project, the city’s development agent began purchas ing property from willing sellers and used the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 138 EMINENT DOMAIN . Embezzlement by Age, 2007 55 and over 2.5% 45 – 54 years old 9.3% Under 18 years old 7.6% 18– 24 years old 38.7% 25 44 years old 41 .9% GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 EMBEZZLEMENT therefore,. Abraham Lincoln’s cabinet in 1862. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 130 EMANCIPATION PROCLAMATION copies of the original, including the official government copy derived. authorized to exercise functions of public character, following the payment of just compensation to the owner of that property. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EMINENT DOMAIN 135 Federal,