that body, and all that could be said on that head, in any such case, would be, that it should be ascertained in some manner which should be just to all parties. If the State agents and the individual can agree between themselves, of course there is no difficulty. But if they cannot, it would not be fair to the individual that those same agents of the government who have differed with him should have the settlement of the question. Some tribunal or umpire ought to be set up or indicated, to decide upon the question as a disinterested party.2

Under our State constitutions the legislature could not pass upon the value of the property; for this would be a judicial act.3

A diversity exists in the practice of our States; in some, compensation is ascertained, as it is in England for the most part, through a jury duly summoned ; in others, through commissioners or appraisers, appointed for the purpose by the legislature. Each of these methods seems unexceptionable on principle; and the frequent resort to both of them would seem to indicate that both are found good in practice.

IV. And now it is proposed to consider whether the State itself, or its agents appointed to legislation, can part with, or in any degree diminish or restrict the Right of Eminent Domain, by way of contract with corporations or private persons.

And herein:

1. Of the power of the State.

2. Of the power of the legislature.

3. Of grants of exclusive privileges.

4. Of grants, with contracts of restraint annexed.

1. As to the power of the State.

We saw at the outset of our investigation that a distinction must be made, in considering the origin of government, between government and the form of it; that the latter, whenever the government is a rightful one, and indeed always in some sense, is what it is, by the will of the people; but that the former, to wit, government itself, has a far higher and more mysterious origin, which is nothing less than a necessity in the nature of man.5 And we saw also that since government is necessary, all that it implies is of equal necessity; as, e. g., sovereign power, residing somewhere, and the rights of sovereignty, such as the right of prescribing rules of conduct; of collecting revenue; of appropriating private property to public uses.

Com. v. Fisher, 1 Penn. 466.

22 Kent, 339, n.; Beekman v. R. R. Co., 3 Paige, 45; Taylor v. Porter, 4 Hill, 146; Backus v. Lebanon, 11 N. H. 19; R. R. Co. v. Chappell, 1 Rice (So. Ca.) 383.

3 Cushman v. Smith, 34 Me. 262.

4 Stat 8 Vict. ch. 20.

5 Puff. lib. 7, cap. 3, s. 2.

The necessity in which government originates, is that of protecting, securing, and promoting the natural and inalienable rights of man to life, liberty, and the pursuit of happiness. But for these great ends, which the State alone can compass, there would be no State; its sovereign rights exist only by reason of these ends; must be limited by them; must remain so long as they remain to be accomplished, and must be co-extensive at all times with all that they require.

The compassing of these ends comprises the duty of the State, which is not imposed by its consent, and cannot be laid aside at its pleasure; and therefore the State cannot lay aside, or part with, or restrict the power of performing it. The rights of sovereignty,

like the natural rights of man, are inalienable.

It must be noticed that we are not now speaking of what the State may do in the establishment of a new government, to which head that transfer of power from thirteen independent States to the Federal Government of the United States, which took place in this country in 1787 and the years immediately following, is to be referred, nor of what it may do, under pressure of necessity, in its relations with other States. Our whole inquiry is directed to the power of the State in its relations to its own subjects or citizens.

And it seems to follow from what has gone before, that no exemption of property from the Right of Eminent Domain, by one constitution, ought to bind the State in making another constitution. It can, in general, serve only to restrain the action of the officers appointed under the instrument containing it.

2. As to the power of the Legislature.

(1.) It is manifest that the State may restrain the action of those whom it intrusts with its sovereign rights, in any way it pleases; it may award them full, or only partial and limited sovereignty. And it is clear, that a legislature existing under a written constitu tion must be bound by any such limitations, whether expressed or necessarily implied. And, again, it is clear that, beyond any such plain restrictions or limitations, the sovereign power is all delegated; the legislature is the full representative of the State, in its legislative functions; its duties are the same, its rights and powers the same.3 It would also seem plain that the legislature cannot derive any right from the sovereign, of which he himself was not possessed.

But yet the sovereign might confer power upon the legislative body to restrict any sovereign right by contract, e. g., the Right of Eminent Domain, so far as to bind itself and all the other departments of government; although, if our reasoning has been good,

1 Puff. lib. 7, cap. 3, s. 2.

2 Puff. lib. 8, cap. 5, s. 7.

31 Blackst. 139; R. R. Co. v. Davis, 2 D. & B. 451.

VOL. IX.NO. VI.-NEW SERIES.

27

such a contract could not, for a moment, bind the State itself, acting in its sovereign capacity. Such a contract, made under. such circumstances, would bind the legislature in any event, as matter of right; and it would, as matter of law, if we suppose the State to provide against impairing the obligation of contracts, as is done in the United States' Constitution.

But if the State should make no such grant of power to the legislature, then, (it would follow from what has been said,) that body would have no power to part with its sovereignty, or to diminish or restrict it.

Accordingly, in no event ought the action of the legislature to be construed as an attempt to do this, when it is susceptible of any other construction, reasonably possible. For if the legislature has not the power to do it, such a construction would make that body to assume an unconstitutional function. And even if it has the power, it is not readily to be believed that it has exerted it, since this would be entering into a covenant to desert its duty, and surrendering a power which it is of the utmost importance to the public to preserve.2

But what if the legislature, having no authority to that effect in the constitution, should, nevertheless, exercise its power against its duty, and attempt, unmistakably, to make a transfer of its sovereign rights and powers, or to put a restraint upon their exercise by way of contract? Must it abide by such an agree

ment?

Leaving out of view, at present, any provision in the constitution expressly holding it to its contracts, we must answer this question in the negative. The sovereign body is indeed pledged - but to what? To that which is directly counter to the great end of its existence and the supreme law of its action. The delegate of the State has sought to put limits to that power which its paramount law and duty required should be unlimited. The duty of the legislature still remains, and is still of supreme obligation, viz. : to compass the great ends of government, by any and every means that falls within the range of full and unfettered sovereignty; and, therefore, all the power which the State lodged with that body must remain. It would therefore be the duty of the legislature, in such a case, to hold itself unimpeded by such an agreement, so far as the accomplishment of the ends of government, in the exercise of the powers delegated to it, might require. Nor would this be a violation of good faith, since all parties knew or should have known that the legislature was transcending its rightful

power.

But if, when such an agreement be made by such a legislature, there be a constitutional provision like that in the organic charter

1 Prov. Bank v. Billings, 4 Pet. 514; Charles River Bridge v. Warren Bridge, 11 Pet. 420.

2 Prov. Bank v. Billings, 4 Pet. 514; 2 Greenleaf's Cr. Tit. 27, s. 29, n.

1

of the United States, forbidding any legislative action impairing the obligation of contracts; what shall we say now? Is not the legislature firmly bound now, and may not the judiciary hold it to its agreement?

Again, it would seem not. It can hardly be supposed, that the State, by such a provision, intended to bind its delegates to adhere to an agreement which the State itself would have no right to bind itself by; or to ratify the exercise of a power which the State itself does not possess, acting in its own sovereign capacity. Legislative power is given to such a body as this, whose power we have supposed to be unrestricted, to use and exert in any manner and to any extent that the State itself may use it; nor is it a natural construction of a provision forbidding to impair the obligation of contracts, to say that it gives to the legislature a power which otherwise it would not have, that of restricting or parting with its sovereignty; and this is the effect of the construction in question. It would seem rather that the name of contract is not the one to apply to such action of the legislature; that the rights and powers of sovereignty cannot form the subject-matter of a contract; and, therefore, that the constitutional provision, now referred to, would not apply to a stipulation or agreement of this character.2

(2.) So far, our reasoning has supposed, that power was not denied to the legislature to make an agreement parting with, diminishing, or restricting its sovereignty. If in any case it be denied, then, in reference to that case, this discussion is at an end.

Is there not such a denial, if not in terms, yet, what amounts to the same thing, by necessary implication, in all our American constitutions?

In these constitutions, the legislative power, which includes all implied in the Right of Eminent Domain, is conferred upon a body of individuals who are to be chosen, from time to time, according to prescribed rules and forms. It is not given to one legislature, nor to one legislature more than another, but in general, to the legislature; on any and every body, assembled, or to be assembled, according to the provisions of the constitutions, as the legislature, sovereign legislative power is conferred upon one as much as another. Each, in every essential particular of sovereignty, is to be the equal, to the utmost, of every other. The whole sovereign power (so far as it is delegated at all) must lodge, full and intact, in each.

Such is the necessary construction of these constitutions. And what does this show, if not that they deny to any one legislature

1 Brewster v. Hough, 10 N. H. 138; Backus v. Lebanon, 11 N. H. 19; Pisc. Br. v. N. H. Br., 7 N. H. 35; B. & L. R. R. v. Sal. & L. R. R., 2 Gray, 1, Parker, arguendo.

22 Pars. Contr. 529; Enfield Br. Co. v. R. R. Co., 17 Conn. 40; Can. Co. v. R. R. Co., 4 G. & J. 454; per Dorsey, J.; Am. Law Reg. (Feb. 1856),

213.

the power of parting with, diminishing, or restricting its sovereignty, so much as one iota ?

And yet, of course, each legislature may do everything that can justly be called an exercise of its sovereign power, and, so far as this goes, each may affect the action of its successors; for the power was given to use, and if we say that it may not be exerted so as to limit the action of subsequent legislatures, this would render the act of the State in conferring it, absurd and nugatory. Every legislature must respect the rights acquired under the laws, grants, and contracts 2 of its predecessors; for those rights, when once acquired, have their virtue, and operate according to the law of nature. If this were not so, society could not hold together, and the action of the legislature would tend, not to secure, but to subvert the ends of government. It is not necessary, then, that each legislative body should have the same power, that is, be free to do the same things, as if no other legislature had acted; that never can be; each may be obliged to respect acquired rights, and yet be sovereign; otherwise the law of nature and the rights of the State would be at war, and one or the other must be exterminated. But it is no part of sovereignty to claim exemption from that law of good faith, which is the vital air of society.

It

But how is it when a legislature seeks to touch the essential sovereignty, or to part with any portion of that? Suppose, for example, it stipulate, in any form whatever, that property shall not be subject to the Right of Eminent Domain; must its successors hold themselves bound by this? There is but one answer. cannot.3 For how otherwise shall we say that the full measure of sovereignty has come to them? The distinction cannot be set up, in such a case, which is thought to justify the legislative exemption of particular property from the right of taxation,—to wit, that although particular property is exempted, yet the sovereign right of taxation remains; because the Right of Eminent Domain is manifestly entire, and stands wholly in this, viz.: in the power to assume any private property whatever, that the public exigencies may require. If the legislation in question be good and binding upon future legislatures, then the public exigencies may clamor ever so loudly for some property, and they cannot be satisfied. And why? For no reason but that one body has stripped from its successors the fulness of their power. To enter into such a stipulation with the intention of binding subsequent legislatures, is not merely the exercise of a delegated and shifting sovereignty, but it is rather an attempt to probe to the very centre and seat of it, and to paralyze it in a vital point.

1 Piqua Bk. v. Knoop, 16 How. 369, Campbell, J.; Debolt v. Ins. & Tr. Co., 1 Oh. St. 563; Turnpike Rd. v. Husted, 3 Ibid. 578.

2 Grot De Jure B. & P. b. 2, ch. 14, s. 6, 2; Dartmouth Col. v. Woodw., 4 Wheat. 218; Fletcher v. Peck, 6 Cranch, 87; Terrett v. Taylor, 9 Ibid. 43. 3 Piqua Bk. v. Knoop, 16 How. 369, Campbell, J.; Debolt v. Ins. § Tr. Co., 1 Oh. St. 563; Tpk. Co. v. Husted, 3 Ibid. 578.