grant a charter to a corporation, and exempt its franchises and property from State taxation. Such exemption for such consideration may be contracted by a State in a sale of its lands, and such exemption laws are valid, and cannot be repealed by the State legislature. (3 How. 133. 16 Pet. 289. 6 How. 331. 7 Cranch, 164. 16 How. 369.) Such exemptions must rest on express and positive contract, which, being against equality of taxation, ought not to be extended by construction.

SEC. 6. The States of our Union, by virtue of their reserved sovereignty, possess the right of eminent domain, for all municipal objects of public use or convenience, as to all property and franchises within their respective limits, subject to the limitation imposed by the Constitution of the Union and their respective State constitutions. (3 How. 230. 6 Ib. 531. Wheat. Int. L. P. 2, c. 4, § 3. 18 Wend. R. 13, 25, 173-175. 4 Hill's R. 143–147. 3 Paige's Ch. R. 57, 58. 11 Pet. 420, 536. 7 Mass. R. 395. Angell on Water-Courses, 4th ed. 506. 1 Dall. 537. 1 Bald. C. C. R. 205. 8 Barb. R. 486.) Such objects are public squares, streets, roads, almshouses, public mills, canals, telegraphs, draining extensive marshes, the supplying cities and villages with water, the erection of bridges, ferries, and, perhaps, the conversion of tenures deemed injurious to the public good, into allodial. These, when declared by a State legislature to be demanded for public use or convenience, may, it would seem, become the objects of State eminent domain.

SEC. 7. Congress has a right of eminent domain as to all property and franchises within the United States for national objects, subject to constitutional limitations. The Constitution regulates the right, and thus assumes its existence. (8 Wheat. 101.) By virtue of this power our national government, by treaty, may release a foreign nation from liability to pay our citizens claims or debts

due them; and, in such cases, the United States are bound, in equity and by the Constitution of the Union, to pay the American claimants. (Const. U. S. art. 5. 11 Pet. 642. Grotius on P. & W. B. 3, c. 20, §§ 8, 10.) Congress is the sole judge of the necessity of taking property for national objects. (4 Wheat. 429.)

SEC. 8. In the District of Columbia and the territories of the United States the right of eminent domain, for national and municipal objects, is vested exclusively in Congress. (Const. U. S. art. 1, § 7; art. 4, § 3. 5 Wheat. 317.)

Over places within the States, where jurisdiction has been ceded to the United States, no State jurisdiction remains, except so far as reserved by the cession. (1 Wood & Minott's R. 84.) All such places are subject to acts of Congress, treaty law and the Constitution of the Union.

SEC. 9. Congress can, in no case, exercise the right of eminent domain for a national object, either by direct taking, or by treaty, releasing private property, without making full compensation to the owners of the property so appropriated. (Ante, § 1, 7. 11 Pet. 642. 7 Ib. 247. 8 Ib. 110. 2 Ib. 380. Wheat. Int. L. 308, 568.) The Constitution prescribes this condition, and thereby recognises the existence of a right of eminent domain for national objects, by the limitation of the power. And thus the national government is admitted, by a necessary implication, to possess, as an attribute of sovereignty, this authority. (Ib.) Grotius applies this doctrine to treaty releases of private claims and property, as well as to property destroyed by an enemy, and he holds that, upon principles of equity, the loss should be charged on the national treasury, so that each citizen may bear his just pro rata share of the loss of property by national appropriation or belligerent destruction. (Grotius on P. & W.

B. 2, c. 14, § 7; B. 3, c. 20, §§ 8, 10. See, also, Vattel, B. 1, c. 20, §§ 244, 245.)

The Constitution of the French republic of 1848, as well as that of Greece, contain the same principle as the Constitution of the United States, requiring indemnity in all cases.

Upon this obvious principle, that all the citizens of a State or nation ought to bear equally its burdens, Buller, J., held that no action lay "for pulling down houses or raising bulwarks for the preservation and defence of the kingdom against the king's enemies. The civil law writers," says he, "indeed say that the individuals have a right to resort to the public for satisfaction; but no one ever thought that the common law gave an action against the individuals who pulled down the house, &c. This is one of those cases to which the maxim applies, salus populi suprema est lex." (4 T. R. 796. 4 T. R. 796. 1 Denio's R. 598. 1 Dall. 362. 17 Johns. 52.)

SEC. 10. In exercising the right of taking private property for public use, all States and nations, from the nature of the right, must actually take it for a purpose adjudged by the legislative power to be for the public use or convenience. (Ante, § 1. 16 Vermont R. 449. 18 Wend. 13. 11 Pet. 642. 8 How. 585. 6 Ib. 531. 2 Kent's Com. 5th ed. 339, 349.)

It may be so taken for a public use by State agents, or by the intervention of courts or municipal bodies. (6 How. 531, 532. 18 Wend. 13. 25 Ib. 173, 174. 3 Paige's Ch. R. 57, 58. 2 Hill, 24.)

A public use seems to be where the property is appropriated for public defence, public health or public convenience, and of this the legislature of each State or nation is the sole judge.

But the taking, by a law, of the property of one man

and transfer of it to another, would not be a taking for public use, and whether a full compensation was made or not, it would be tyrannical, and such act would, upon principle, be illegal and void. How. U. S. R. 213, 230.

2 Kent's Com. 5th ed. 340.

18

585. 3 Comst. N. Y. R. 517.

676.)

(5 Paige's Ch. R. 158. 3

Wend. 59. 4 Hill, 46, 47.

11 Pet. 642. 8 How. R.

11 Pet. 642.

11 Wend. 149. 19 Ib.

SEC. 11. A State of our Union owns the soil under navigable rivers and all navigable waters within its limits, subject only to the national rights of free navigation and commerce, and other powers granted by the Constitution of the United States. In maritime States their curtilage forms part of their jurisdiction. Within such limits the State right of eminent domain, subject to constitutional limitations, seems to attach to such soil and navigable waters of a State; with that restriction, the State regulates fisheries, ferries, bridges, piers, wharves and State improvements of channels, &c. This State right to the soil under its navigable waters extends from below ordinary high-water mark. (3 How. 213, 230. 16 Pet. 410; see ch. 6, § 6. 5 Gilman's R. 351. 4 Wend. 11, 25.)

State legislatures have power, within their respective territories, to prescribe the lines of wharves, and to declare those a public nuisance that extend beyond them, even though the riparian owner's right to the soil under water for wharfage and commercial purposes goes beyond such lines, and though no actual injury is done to navigation, and no compensation to the owner is provided by the law. (7 Cushing's Mass. R. 53, 101-104.)

An indictment at common law lies for any public nuisance erected in navigable waters. (Ib. 101, 103.)

SEC. 12. A State may exert its power of eminent domain by the intervention of corporations or associations,

and may regulate the tolls for the use of all State works thus made, such as rail-roads, canals, ferries and telegraphs.

It seems that as to all artificial navigation of a State and all such works, State laws may allow a discrimination of tolls in favor of the citizens of the State as between them and citizens of other States and foreigners. (4 Wash. C. C. R. 378.) Vattel asserts this as a rule of the law of nations, and as a mode by which a nation might justly compel all foreigners to contribute a fair pro rata towards the construction and support of such works. This may be a right of State and national sovereignty, but such discrimination in tolls is not in harmony with the liberal commercial spirit of the age, and seems to be against sound financial policy.

In our republic, national works alone, in execution of acknowledged constitutional powers over commerce, the mails and military defence can be executed when directed by acts of Congress; whether tolls can be collected on such national works is an unsettled point. If a national railway, from Lake Michigan or St. Louis, were made to the Pacific for mail and military purposes, it might lead to a solution of the question.

In Hartwell vs. Armstrong, (19 Barb. R. 166-168,) the Supreme Court of New-York say, that eminent domain is vested in the people of every State, and may be exerted, as prescribed by its constitution and laws, whenever a State legislature decides that its exertion is necessary to the public good. That a State may exert this power in draining swamp lands and marshes, and in bringing water into cities and villages. That in such cases the object is public, though a small number of persons may be immediately benefited. And that, when the legislature passes such laws and adjudges the necessity of taking private property for such public purpose, and its agents, commissioners or corporations, pursuant to law,