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individual of his property without his consent. The law is universally recognized as laid down by Bynkershoek, that “this eminent domain may be lawfully exercised whenever public necessity or public utility requires it," and that "the sovereign power may take from proprietors those things without which highroads cannot be made;" and that "this right may be imparted to others occasionally, as to the chief magistrates of towns, cities," &c. But then he annexes the qualification, that "if houses and lands be taken from individuals, adequate compensation should be made."

2. Practice in England.

§ 79. In England, notwithstanding the transcendent power of parliament, the law on the subject of the construction of highways, under the direction of the sovereign power, has been ad

1 Vattel, ch. 20, § 34, and see 2 Kent, Comm. 339. The greatest despots have not always felt themselves at liberty to take private property for a public purpose without compensation. One of the Judges, in the case of Lindsay v. Commissioners, in the Superior Court of South Carolina, 2 Bay, (S. C.) R. 58, has quoted from De Tott's Memoirs of the Turkish government, the following: "The Sultan Mustapha, being desirous of building and endowing a new mosque, fixed upon a spot in the city of Constantinople, which belonged to a number of individuals. He treated with all of them for the purchase of their parts, and they all willingly complied with his wishes, except a Jew, who owned a small house on the place, and who refused to give it up. A considerable price was offered to him, but he resisted the most tempting offers; his partiality for the spot, or his obstinacy resisted the most tempting offers. What was the conduct of the Sultan? He consulted his Mufti, who answered, that private property was sacred, that the laws of the Prophet forbade his taking it absolutely, but he might compel the Jew to lease it to him, as long as he pleased, at a full rent; and the Sultan submitted to the law." This is evidence, that the principle of indemnification is founded in natural justice. See also, People v. White, 19 Barb. (N. Y.) Sup. Co. R. 26; Hamilton v. Annapolis and Elk River Railroad Co. 1 Maryland Chancery Decisions, 107; Cooper v. Williams, 7 Greenl. (Me.) R. 273; Spring v. Russel, 3 Watts, (Penn.) R. 294; Henry v. Underwood, 1 Dana, (Ken.) R. 247; O'Hara v. Lexington, &c. Railroad Co. 1 Ibid. 232; Perry v. Wilson, 7 Mass. R. 395 ; Chesnut v. Shane's Lessee, 16 Ohio R. 599; Greenville and Columbia Railroad Co. v. Partlow, 6 Rich. (S. C.) Law 2, 286; County of Sangamon v. Brown, 14 Ill. R. 163.

ministered on the above-mentioned just and equitable principles. "If a new road," says Blackstone, "were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even public tribunal, to be the judge of this common good, and to decide whether it be expedient, or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this, and in similar cases, the legislature alone can, and indeed frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is considered as an individual, treating with an individual for exchange. All that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price; and even this is an extension of power which the legislature indulges with caution."1

1 1 Bla. Com. 139. That a "full indemnification" is the condition, by the law of England, on which the valid exercise of the power of laying out highways depends, is evident from the act of parliament for making a new road in London, from Black Friar's Bridge, across St. George's Fields, (Anno. 1756.) The Corporation of London is thereby authorized and directed, to treat with the owners of lands that might be taken away by the road, for the purchase of the same; and in case of refusal to treat for the value of the lands taken, the same to be assessed by a jury. Cited by Waties, J., in Lindsay v. Commissioners, 2 Bay, (S. C.) R. p. 58. And see Sutcliffe v. Greenwood, 8 Price, Exch'r R. 535. Trespass for entering and breaking plaintiff's close. New assignment, setting out abuttals, to which the defendant pleaded a public highway. The plaintiff replied, that a new road had been made, by virtue of an act of parliament, and traversed the highway. By the act it was enacted, that the new road should be completed, and that the lands constituting the former road, (unless leading over some moor or waste ground, or to some village, town, or place to

§ 80. At this day, it is considered in England, that the true principle applicable to all such cases, is, that the private interest of the individual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance, and that the interference is one of an extraordinary character.1 The English Courts will not, therefore, so construe an act of parliament as to deprive persons of their estates, and transfer them to other parties without compensation, in the absence of any manifest or obvious reasons of policy for so doing, unless they are so fettered by the express words of the statute as to be unable to extricate themselves; for they will not suppose the legislature had such an intention.3 As it was observed in a recent case, where large powers are intrusted to a company to carry their works through a great extent of country, without the consent of the owners and occupiers of the land through which they are to pass, it is reasonable and just, that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated to the party sustaining it. The extraordinary powers with which railways and other similar companies in England are invested by parliament,

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which the new road did not lead, should be vested in trustees and sold. It was held, that the trustees could not make a partial destruction of the road, and that, if the old road lead to a single house, the same remained subject to the public right. Wilkinson v. Bagshaw, Peake's Add. Cases, 165. Establishment of Highways by Parliament, see Rex v. Lyon, 5 Dowl. & Ry. R. 497; Rex v. Miller, 1 B. & Adol. R. 32; Rex v. Camberworth, 3 B. & Adol. R. 108; 4 Ibid. 731; Rex v. Yorkshire, 5 B. & Adol. R. 1013; Rex v. Edge Lane, 6 Nev. & Mann. R. 81; Wilkinson v. Bagshaw, Peake's Add. Cases, 165.

1 See, per Lord Eldon, 1 Mylne & Keen, Ch. R. 162; Webb v. Manchester and Leeds Railway Co. 4 Mylne & Cr. Ch. R. 116, in which the principles on which equity will exercise its jurisdiction over companies invested with compulsory powers are considered. See also Simpson v. Lord Howden, 1 Keen, Ch. R. 598; Lister v. Lobley, 7 Adol. & Ell. R. 124.

2 See Broom, Legal Max. 4.

3 Stracey v. Nelson, 12 M. & Welsb. R. 540; Hutchinson v. Manchester and Rossendale Railway Co. 14 M. & Welsb. R. 694.

4 Regina v. East Counties Railway Co. 2 Q. B,, cited in Broom, Legal Max. 4; Blakemore v. Glamorganshire Canal Co. 1 Mylne & Keen, Ch. R. 162.

are given to them "in consideration of a benefit, which notwithstanding all other sacrifices, is, on the whole, hoped to be obtained by the public;" and that since the public interest is to protect the private rights of all individuals, and to save them from liabilities beyond those which the powers given by such acts necessarily occasion, they must always be carefully looked to, and must not be extended further than the legislature provided, or than is necessarily and properly required for the purposes which it has sanctioned.1 Walford, in his “ "Summary of the Law of Railways," says, in reference to the rules of construction applicable to some of the more important provisions usually found in railway acts of parliament: "A power of this nature, calculated to operate in a manner so highly derogatory to private property must receive a strict interpretation. If, in the supposed exercise of such a power, the company enter upon, or take, any man's land, they must clearly establish their authority to do so; and if the words of the statute on which they rely are ambiguous, every presumption is to be made against the company, and in favor of private property:

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3. Practice in the United States.

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§ 81. Still, it is true, that in England, where the power of parliament is often said to be omnipotent (meaning, of course, so far only as human agency is implicated,) there may be an abuse of the power of appropriating private property, where the act of appropriation is the concurrent act of the three estates of the realm; but in a State, governed by a written Constitution, as each State in this country is, if the legislature should so far forget its duty and the natural rights of an individual,

1 Per Lord Langdale, in Coleman v. East Counties Railway Co. 1 Law Journal, (Chan.) 78.

2 Walford on Railways, 63, (2d ed.) London, 1850.

3 And see Scales v. Pickering, 4 Bing. R. 448; Webb v. Manchester and Leeds Railway Co. 4 Mylne & Craig, R. 120; and S. C. 1 Railway Cases, 599, per Lord Cottenham, Ld. Chan.; Selway v. Railway Co. 6 M. & Welsb. R. 699.

as to take his private property, and transfer it to another, when there is no foundation for a pretence that the public is to be benefited thereby, such an abuse of the law of eminent domain would be an infringement of the letter, as well as the spirit, of the constitutional law, and, therefore, is not within the general powers delegated to the legislature.1 By the Constitution of the United States, too, "Private property shall not be taken for public use, without just compensation." This particular provision in this instrument, it is true, only restrains the power of the general government, and has no application to the several States; 2 but a prohibition to the same extent is to be found in the constitutions and bills of right of each of the States. Upon the admission of a State, as one of the United States, formed from territory of the latter, the right of eminent domain passes to the State, and nothing remains in the United States but the public lands. Besides, it considered that the constitutional provisions on this subject, both of the United States, and of the several independent States, are only declaratory of the previously existing universal law which has been hinted.a

1 Varick v. Smith, 5 Paige, (N. Y.) Ch. R. 137.

2 Barron v. Mayor, &c. of Baltimore, 7 Peters, (U. S.) R. 243; State v. Dawson, 3 Hill, (S. C.) R. 100.

3 Pollard v. Hagan, 3 How. (U. S.), R. 212.

4 Per Spencer, C. J., in Bradshaw v. Hodges, 20 Johns. (N. Y.) R. 106; Wheelock v. Pratt, 4 Wend. (N. Y.) R. 647; Bougher v. Nelson, 9 G. & Johns. (Md.) R. 299; People v. White, 11 Barb. (N. Y.) Sup. Ct. R. 26; Harness v. Chesapeake and Ohio Canal Co. 1 Johns. (Md.) Ch. R. 248; Regents of the University of Maryland v. Williams, 9 G. & Johns. (Md.) R. 409; Bristol v. New Chester, 3 N. Hamp. R. 535; Embury v. Connor, 2 Sand. (N. Y.) Sup. Ct. R. 98; Young v. Harrison, 6 Georgia R. 131. See the Law of " Eminent Domain reviewed by Chan. Walworth, in 3 Paige, (N. Y.) Chanc. R. 45. And see Flatbush Avenue, (Matter of,) 1 Barb. (N. Y.) R. 286; Toledo Bank v. Bond, 1 Ohio R. (N. S.) 686; Bradshaw v. Rogers, 2 Johns. R. 103; Furman, (Matter of,) 17 Wend. 659. The State of New York possesses the power to appropriate to public use the lands of the Indians, within their territory, upon making compensation therefor; notwithstanding the grant of the right of preemption in such lands to Massachusetts. Wadsworth v. Buffalo Hydaulic Association, 15 Barb. (N. Y.) Sup. Co. R. 88.