THE AMERICAN LAW REGISTER. NOVEMBER, 1856. THE RIGHT OF EMINENT DOMAIN.' No. II. We have thus far endeavored to show eminent domain to be a right, the quantity of that estate which the sovereign holds in the property of the subject, and its constitutional modifications in this country, if any such exist. We are next to consider with whom this power resides. Eminent domain is said to be “▲ Right WHICH BELONGS TO THE SOCIETY OR SOVEREIGN." In communities which have not irrevocably yielded all the pow ers of the State to princes or hereditary rulers, this power will be found subsisting in its natural state, in the people at large. Its exertion and all the concurring incidents of its exercise are to b measured and restrained by their discretion only. But as no community can long exist without recognizing some fundamental principles of self-control, which shall regulate the otherwise impulsive manifestations of popnlar will, it naturally follows, that even in the 'Continued from vol. IV., p. 641. most ultra democracies, restraints and safeguards are involuntarily thrown around the exercise of this right, which of all powers may be made most intolerable to the governed, to prevent its oppression of the subject. In our own country, the people in their original omnipotent power, have wisely imposed on themselves the observ ance of those fundamental rules, which to them seem the most likely to insure the true end of government. They have endeavored to fetter the attributes of sovereignty, so far only, as may prevent their abuse and confine them within the limits of justice. They have erected the departments of government by which the process of enacting, expounding, and enforcing the laws shall be carried on, and as a necessary consequence, the powers without which it would be impossible to effect the object the people had in view in establishing the government, are retained by and become part of the power of that department, which, by its functions, is entitled to their exercise; and though the people may modify or amend their constitutional restrictions, enlarging or diminishing the authority of their instruments of government, yet whatever the functions retained by those departments, if to any of them eminent domain is an essential, a proportionate amount or extent will attach to and become a part of those powers. Previous to the formation of the constitution of the United States and those of the several States, this, together with the other attributes of sovereignty vested in the people at large; but under our present form of government, the eminent domain, within constitutional restrictions, rests with the legislatures of each State, and, so far as the functions of the general government may require it, with Congress also. As it rests with these bodies, they of course must be the judges of the proper occasion for its exercise, and it must be entrusted to their wisdom to determine when public uses or necessities require the assumption of private property.' As these bodies most immediately emanate from, and are nearest to, the general private interest, it is a wise distribution of the functions of gov 14 Wheat. 661; 8 Wheat. 584; 2 Peters' 8. C. 656. ernment, that a power so dangerous and easy of abuse, should be reposed in those who from interest will jealously repel such abuse; but if they should either wantonly, or in a mistaken view of their own powers seize the goods of a citizen, it would be an assumption of power the courts would not hesitate to pronounce unconstitutional and void.' It is said this right rests as a general rule with the legislatures of the States, or the general government; the exceptions are not such strictly, but refer more particularly to those cases where the legis lative body, from an inability to determine accurately what the public interest certainly requires, have transferred their discretion to subdivisions of the State authority, as to the collectors of taxes; or to private enterprise, as private companies for public improvements. Either of these latter, then, to an extent, exercises not only the power of taking, but also of determining to a certain extent, what is required. It may correctly be said that it is a parceling out to sub-agents, a delegated authority. Although the word sovereign is correctly applicable to a people acting from the dictates of their own supreme will and accountable to no one, yet we think Vattel had in view, in this use of it, a contradistinctive signification to the sense of the word "society," and intended to designate those forms of government which are entirely independent of popular will; or at most, remotely or indirectly influenced by it; as in the limited monarchy of Great Eritain, in which the king and parliament are the supreme power of the land, and necessarily with them in general rest the attribute, and exercise of the right of eminent domain.' Yet it would seem for some purposes, this power is among the rights of prerogative. The king has the right without consulting parliament, to erect franchises which in their nature must interfere with the claims of private persona, and this upon the writ of ad quod damnum, the name of which 12 Kent, 839. *2 Kent, 888-40; 7 Greenl. 292; 2 Porter, 296; 8 Paige, 45; 18 Wend. 9; Rice, 883. 4 Inst. 36; 1 Black. Com. 51. would tend to confirm the opinion; which writs running in the name of the king were to inquire, "If it be to the damage or prejudice of us or others; then to what damage and what prejudice of others." The same writ has also been made use of in this country. The crown might of its own motion, on such writ, so determining the damages which would accrue to itself or others, establish a ferry, market or license the cutting of a canal through the lands of another, or the taking of such species of property as may be necessary to the defence of the realm. It has been usual however, in England, for this right to bo exercised under the sanction of an act of parliament, particularly in the case of some new application of private property to public uses, as in the early experiments and adoption of the railroad system in that country; but when experience has demonstrated that the public interest can be subserved in an eminent degree by such new application of private property, general acts have been passed under which private capital and enterprise has been encouraged into investiments beneficial to the public. Such is the Land Clauses Consolidation Act of 8 Vict. c. 18, which provides that lands may be taken under certain conditions and restrictions, and comprises in one general act sundry provisions usually introduced into acts of parliament relative to the acquisition of lands required for underte kings of a public nature, for the purpose of avoiding repeated legislation on similar subjects: most of the United States have general enactments for the same purpose.* We have now said all we propose to do as to the particular departments of government in which this power resides, and we come to an important division of our subject, if one part can be said to be more so than another. We have found the eminent domain of a State to consist in a right which belongs to the society or the sovereign; we are now to consider the manner in which that right may be properly mani |