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it into fitness with the due enjoyment of property by the community ; and of taking private property for public purposes whenever these shall demand it, and without any reference to the owner's consent;' since, if it could only be taken when the owner consented, it might often happen, that the public purposes would be thwarted, because the owner either would not part with his property at all, or would not upon just terms.
It is not, then, any common or technical doctrine of the law with which we have to deal, but a sovereign right, coeval with the State itself, which is the origin of the law; a right whose sanction lies not in the authority of the State, or in human reason, like that of the law, but rather in that which is the source of the authority of the State ; to wit, a necessity in the nature of man ;? and this is nothing less than the appointment of the Deity itself, - for, as the State
originates in this transcendent necessity, so do all its inherent, essential rights, of which this is one.
How then does the doctrine of the Right of Eminent Domain find a place in the law ?
We answer, under the head of constitutional law, and in that way only. For although government itself originates in a necessity of the nature of man, yet the form of it does not ;3 this may be moulded in various ways, as e. g. by the direct and conscious intervention of the people. When this intervention takes place, and that body which is itself necessary and sovereign, proceeds to allot its rights and powers among the several departments of government, and by means of a written constitution qualifies, explains, and enunciates those rights and powers, and then entrusts this high charter to the guardianship of its judicial representatives, – then, and in such event only, the Right of Eminent Domain passes into the courts, and finds a place in the judgments of the tribunals exercising this lofty function.4
Where this, or something like this, has not happened, there is little in judicial decisions to illustrate our subject. For in such countries the judges can know no higher authority than the legislature, whose office it is to articulate the sovereign will; to them the law is what the legislature declares or permits to be the law; there is no supreme charter by which to test the action of the legislative body; the rights of man, the just limits of the rights of government, prescription, the long-established course of law, and all that is fondly called the “ unwritten constitution,” serve only to furnish the courts with principles of construction, and stand not a moment in opposition to the declared will of the legislature. What, there. fore, have the English courts to do with the grounds and precise
· Heinecc. Elem. Jur. et Nat., lib. 2, c. 8, s. 168.
nature, and true boundaries of the Right of Eminent Domain ? Such questions are for statesmen and the Houses of Parliament, but not for the judges or for Westminster Hall.
Accordingly, very little is to be learned on this subject from the reports and legal writers of England. What we do gain from that country, is rather found in the free principles on which its government is administered, and the admirable care with which, on this head, its legislature observes the limits of its rightful power.
But how is it in our United States of America ?
Here we have an assemblage of many States, each with its written constitution, containing provisions applicable, in some degree, to the Right of Eminent Domain, and its bench of judges, whose highest office it is to preserve the constitution inviolate, as well from the action of the legislature, as from that of all private parties who may come within its jurisdiction. We have also a Federal State, supreme over all, with a written constitution like the rest, and a bench of judges whose function it is in guarding the constitution committed to their charge,3 duly to limit and restrain the action of the several lesser States. Thus it falls to each one of these courts to consider and pass upon the rights and powers of government; most especially to that august tribunal at the capitol, before which the sovereign rights of one-and-thirty States are brought up for judgment.
Since these things are so, and since the opening of highways and turnpikes, the improvements in navigable streams, the widen. ing of streets in cities, the cutting of canals, and the extension on a scale so stupendous of the modern invention of railroads, have all conspired together to bring a greater or less number of cases before each of these tribunals, in which the Right of Eminent Domain has been involved, - in this state of things we find our American Reports filled with a body of learned discussion which has explored this subject in all its length and breadth.
It has, therefore, been the structure of the American govern. ments, the rapid development of this country, and the jealous spirit of the people, sensitive to every shadow of governmental interference with private rights, which have brought the subject of Eminent Domain under judicial cognizance, as a topic of constitutional law. In this point of view, the Right of Eminent Domain is peculiar to America. Yet the American peculiarity, let it be observed, lies in this, that this topic has any place in the law, for there is nothing peculiar in the right itself, as it is understood in America ; it is the same here as it is in England, as it was in Rome, as it has been everywhere since government began.4
1 1 Blackst. Com. 189; Stat. 1 & 2 Wm. IV. c. 43 ; Stat. 3 Geo. IV. c. 126, ss. 64 & 85; Stut. 13 Geo. III c. 78; Stat. 8 Vict. c. 20.
· R. R Co. v. Davis, 2 D. & B. 451.
4 | Blackst. 139 ; Gardner v. Newburgh, 2 Johns. Ch. 162; Grot. lib. 3, ch. 19. s. 7; Lindsay v. Com'rs, 2 Bay, 38.
This subject must be treated, therefore, not upon any technical principles of the American or the feudal law, but rather upon such as are of universal application. And while American authorities form the great repository to which every one must resort in any critical examination of it, yet the principles there laid down will be found to stand in harmony with the general outlines of the subject that are presented by Grotius and Puffendorf, and other masters of natural and public law.
It is proposed to investigate the Right of Eminent Domain under the following general heads :
1. A definition of it, and some examination of its provisions and peculiar features.
2. A more particular analysis of it, and a consideration of what is implied in the several terms made use of in iis definition.
3. A discussion of the question whether any State or legislature can part with its Right of Eminent Domain, or diminish or restrict it in any degree, by way of contract with private parties.
4. An inquiry into the proper construction of that clause in the constitution of the Federal Union, and a majority of the United States, which provides that “private property shall not be taken for public purposes without just compensation."
5. A brief consideration of certain peculiar provisions relating to this subject, found in the State constitutions.
II. And now, first, a definitiod of the Right of Eminent Domain and some examination of its peculiar features.
Under this head we shall consider
1. The Right of Eminent Domain is not the right of sovereign power in general ;' for if this were its meaning, it would include the right of promoting and securing the public good in all legitimate ways, and not merely by means of taking private property for public purposes.
Nor is it the power of the State over all property, public and private, and so inclusive of the power of the State over its own property, as e. g. the public lands.3 The public lands or other public property of the State, are of course held subject to the use of the State, and may be appropriated to that end without impedi. ment. The State holds as other owners hold.4 with this difference only, that its property (unless held under a foreign government) is subject to no sovereign rights of taxation or eminent domain, or
I Grot. lib. 1, c. 1, 8, 6; Puff lib. 8, c. 5, ss. 7 & 8.
Puffendorf and Proudhon, cited in 2 Kent, 339, n. ; 37 Am. Jur. 121; Heinecc. Elem. Jur. et Nat. lib. 2, c. 8, s. 168.
4 Puff. lib. 6, c. 5, s. 8.
any other. Such property is sometimes called the domain of the State ;' if this name be adopted, we must inark a distinction between the domain of the State and the power of the State over it, on the one hand, and the Right of Eminent Domain on the other, which is the sovereign right of taking private property for public purposes.
And again, the right in question is not that of taxation,2 which is simply the right of apportioning and collecting with as much equality as may be, such charges as may be necessary to defray the expenses of government. The end of this right is the pay. ment of the common expense necessary to the maintenance of government ; to which each one ought to contribute his proportion, because the revenue of the State can coine in general from no other source than the property of its inhabitants, and it can be collected on no just principle other than one of equality. And hence the right of taxation calls for no specific article of property, unless it be money, which is always an ample satisfaction of its demands.
Still further, the Right of Eminent Domain is not that of regulating and restricting the use of property.3 Such a right must exist, and is implied in that supreme office of government, the securing every man in the due enjoyment of his life and property. But it touches only the use of property, and so is not the right un. der discussion.
Nor is this to be confounded at all with the common law right of necessity, 4 under which anybody may destroy property when urged by an overwhelming necessity ; e. g. may tear down a house to stay a conflagration. For this right belongs to private in. dividuals, or may belong to them, and all the State has to do in such a case is, to render the plea of overwhelming necessity a suf. ficient justification before the law.5
And finally, it is important to observe that the Right of Eminent Domain cannot properly be regarded as a right of property which the State has in the possessions of its citizens ; 6 a view which has been insisted on, and which is well presented in the confident ex. clamation of a subject of the Roman empire : "Erquid Cæsar non suum videat ?”? It is true that the legal meaning of the term Domain (Dominium) is property ; & it is also true that such was
1 2 Kent, 339 (n.) c.
* C. W. & L. R. R. v. Com’rs, 1 Oh. St. 77 ; People v. Mayor of Brooklyn, 4 Comst. 419.
310 Barb. 32 ; Coates v. Mayor of N. Y., 7 Cow. 585; Com. v. Terkesbury, 11 Metc. 55.
4 2 Kent's Com. 338 ; Grot. De Jure B. et P. lib. 3, c. 20, s. 7. 1. 5 Surocco y. Geary, 3 Cal. 69; Tuylor v. Plymouth, 8 Metc. 462.
& Barlamaqui, Part 3, ch.5; Heinecc. El. Jur. et Nat. lib. 2, c. 8, s. 168, n.; Bynk. Quæst. Jur. Pub. lib. 2, c. 15.
'? Pliuius cited in Grot. De Jure, B. et P. B. 1, ch. 1, s. VI. n.; Dom. Civ. Law, pt. 1, b. 1, tit. 2, s. 13. 82 Pars. Cont. 519.
the meaning attached to the word by Grotius, who originated the name of Eminent Domain as applied to the branch of sovereignty now under consideration. But it is manifestly inconclusive to argue from this that the State has indeed a right of properly in the possessions of every man in the community ; for although Grotius originated the name, yet he did not originate that for which the name stands ; and the name therefore does not necessarily fix the character of the right itself.
Nor does the general adoption of that name make for this idea of a right of property ; since that adoption was made under protest against such an implication, and that too by writers who dif. fered in no respect from Grotius in their exposition of the doctrine. They employed this term, Eminent Domain, because, as Puffen. dorf said, so long as men were agreed upon what was indicated by a name, it seemed of little consequence what that name was. And so it appears that the peculiar force of the term Domain, need have very little weight in ascertaining the nature of our subject, since the right itself, as explained and set forth by the author of that term, differs not at all from the idea of it universally received since his day and at the present time.5
The question comes, then, simply to this, whether the Right of Eminent Domain, being such in its practical aspect as all are agreed upon, can be best explained on the theory of a supreme right of property residing in the State. Ought this right of taking private property to be vested upon a higher right of property inhering in the State ?
Several objections to such a view present themselves, and seem to be decisive against it.
(1.) If this supreme right of property is to be regarded as an absolute right, it is clear that it cannot exist at all times ; for then it would be inconsistent with any theory of free government. It can only exist to the end of satisfying the public exigencies, and is limited by them. Its existence, then, must depend upon the occur. rence of a public exigency; at no other time can there be said to be any Right of Eminent Domain, understood as an absolute right of property. This theory, then, would reduce the Eminent Do. main to nothing at all in the intervals of the public exigencies; and so it would give us an intermittent right, one that comes and goes with the coming and going of these exigencies, instead of a fixed, perpetual, inseparable attribute of sovereign power.
It is sometimes said that all private property is held from the
1 Grotius, lib. 1, c. 1, s. 6.
2 Bynk Quæst. Jur. Pub. lib. 2, c. 15; Heinecc. El. Jur. et Nat. lib. 2, c. 8, s. 168, n.
3 Bynk. Quæst. Jur. Pub. lib. 2, c. 15; Heinecc. El. J. et N. lib. 2, c. 8, s. 168, n.
4 Puff. lib. 8, c. 5, s. 7 ; Heinecc. El. J. et N. lib. 2, c. 8, s. 168, n. 5 Grot. De Jure B. et P. lib. 3, c. 19, s. 7.