that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature or some tribunal specially appointed by it for the purpose can perform.(62)

(62) The principle, that private property cannot be taken for public use, without just compensation to the owner, will be found incorporated in the constitution of the United States (Amendments, Art. V), as well as in the constitutions of the several states. The right to take private property for public use, and upon just compensation, is well established, and is one which is daily exercised. Before such property can be thus taken for public use, the legislature must provide by law upon what occasions, in what mode, upon what conditions, and by what agencies the appropriation is to be made.

In relation to the kind of property which may be taken, it may be said generally that every species of property which the public needs require may be appropriated under the right of eminent domain. Russell v. Mayor, etc., of N. Y., 2 Denio, 461, 469; Baker v. Johnson, 2 Hill, 342; Bliss v. Hosmer, 15 Ohio, 44; Eldridge v. Smith, 34 Vt. 484; Wells v. Somerset, etc., R. R. Co., 47 Me. 345; Gardner v. Newburg, 2 Johns. Ch. 162; Crosby v. Hanover, 36 N. H. 420; Central Bridge Corporation v. Lowell, 4 Gray, 474; Buckingham v. Smith, 10 Ohio, 296; Cooper v. Williams, 5 id. 392.

The taking of private property by the public must be for public use, and not for a mere private purpose, for the government cannot take the property of one citizen and transfer it to another, even upon just compensation, unless the constitution of the particular state authorizes this to be done. Taylor v. Porter, 4 Hill, 140, 148 and cases cited; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 309; Bankhead v. Brown, 25 Iowa, 540; Young v. McKenzie, 3 Ga. 31, 44; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 305; Reeves v. Treasurer of Wood Co., 8 Ohio St. 344; Eldridge v. Smith, 34 Vt. 484.

To define what constitutes a public use is a difficult task, since the authorities are not in entire harmony. It may be proper to mention some of the instances in which private property is taken: as for the purposes of railroads, of public highways, turnpike and plank roads, canals, wharves, basins, ferries, draining swamps and marshes, sewers in cities, bringing water to cities and villages, public parks, and the like cases. Rensselaer & Sara toga R. R. Co. v. Davis, 43 N. Y. (4 Hand) 137, 142; N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. (1 Sick.) 546, 551; Kane v. Baltimore, 15 Md. 240; Gardner v. Newburg, 2 Johns. Ch. 162; Ham v. Salem, 100 Mass. 350; Mithoff v. Carrollton, 12 La. An. 185; Anderson v. Kerns Draining Co., 14 Ind. 199; Reeves v. Treasurer of Wood Co., 8 Ohio St. 344; Matter of Central Park Extension, 16 Abb. 56; Matter of Commissioners of Central Park, 35 How. 255; 51 Barb. 277; Hildreth v. Lowell, 11 Gray, 345. Whether lands can be taken for the purpose of private manufactories is not settled by the authorities. See Cooley on Const. Lim. 534 to 536, and notes.

The legislature is the proper body to determine as to the necessity of taking property; but it need not enact special laws for each particular case; it may by general laws provide for classes of cases; and may then delegate the power of deciding whether such necessity exists, and the exercise of such power by the courts in pursuance of the statute is constitutional. Buffalo & N. Y. City R. R. Co. v. Brainard, 9 N. Y. (5 Seld.) 100; Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y. (4 Hand) 137, 142; Matter of Townsend, 39 N. Y. (12 Tiff.) 171; 6 Trans. App. 266; People v. Smith, 21 N. Y. (7 Smith) 595; Ford v. Chicago & N. W. R. R. Co., 14 Wis. 617; Hays v. Risher, 32 Penn. St. 169; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; Bankhead v. Brown, 25 Iowa, 540.

The quantity of property taken ought to be limited to the necessity of the case. If the exercise of the right to take property does not directly encroach upon the property of an individual, nor disturb him in its possession or enjoyment, he cannot claim compensation, For maintain an action. Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Gould v. Hudson River R. R. Co., 6 N. Y. (2 Seld.) 522; Hooker v. New Haven & Northampton Co., 14 Conn. 146; Richardson v. Vermont Central R. R. Co., 25 Vt. 465; Kennett's Petition, 4 Fost. 139; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Eddings v. Seabrook, 12 Rich. Law 504; Murray v. Manifee, 20 Ark. 561; Murphy v. Chicago, 29 Ill. 279; Macy v. Indianap olis, 17 Ind. 267.

As exemplifying the above remarks, the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), by its 68th section, indicates the mode to be adopted by the owners of land "taken for or injuriously affected by" the execution of works falling within the purview of the act for enforcing compensation as against the promoters of the undertaking, or as against the public company organised for carrying it out. What, then, is the test applicable for determining whether a claim for compensation can be upheld within the above or any similar statutory provision? Such test would seem to be supplied by this consideration(k):— There are (as will hereafter appear(7)) cases in which *an act may [*166] be in law an injury and may produce damage to an individual, and yet in which the law affords no remedy, or at least no immediate remedy. These are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another. In any such case the mode of punishing the wrong-doer is by indictment, and by indictment only. Still, if any person have sustained a particular damage therefrom beyond that of his fellow-citizens, he may maintain an action in respect of that particular damnification. Has then the claimant under a statutory provision such as above-mentioned sustained any particular damnification by the prosecution of the public undertaking ?(m). This is the test to be applied for determining whether he is entitled to compensation(n).

"The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances

(k) Note to Ashby v. White, 1 Smith L. C. in his trade in consequence of the traffic past 6th ed. 264.

his house having been diminished by the stoppage of the thoroughfare by a railway company during the prosecution of their works, authorised by Act of Parliament. Cameron v. Charing Cross Railway Company, 33 L. J. C. P. 313; S. C. reversed, 19 C. B. N. S. 764. See also Ricket v. Metropolitan Railway Company, L. R. 2 H. L. 175.

If the taking, however, is such as to deprive the owner of the ordinary use of his property, and is equivalent to taking it from him, he will be entitled to compensation. Hooker v. New Haven & Northampton Co., 14 Conn. 146; Varick v. Smith, 9 Paige, 547; Murray v. Sharp, 1 Bosw. 539; Lackland v. North Missouri R. R. Co., 31 Mo. 180; Glover v. Powell, 2 Stockt. 211.

In appropriating lands for public use, it is indispensable that proper and just compensation shall be made to the owner. And this compensation ought to be pecuniary in its character, because it is in the nature of a payment for a compulsory purchase. Fletcher v. Peck, 6 Cranch, 145; People v. Mayor, etc., of Brooklyn, 4 N. Y. (4 Comst.) 419; Carson v. Coleman, 3 Stockt. 106; State v. Graves, 19 Md. 351; Curran v. Shattuck, 24 Cal. 427; United States v. Minnesota, etc., R. R. Co., 1 Minn. 127; Buffalo Bayou, etc., Railroad Co. v. Ferris, 26 Tex. 588.

In the absence of a constitutional provision that payment shall precede the taking of the land, it is not essential to the validity of a law that compensation shall be first made. Bloodgood v. Mohawk & Hudson River R. R. Co., 18 Wend. 9; Taylor v. Marcy, 25 Ill. 518; Callison v. Hedrick, 15 Grat. 244; Jackson v. Winn's Heirs, 4 Litt. 323; People v. Michigan Southern R. R. Co., 3 Mich. 496; Charlestown Branch R. R. Co. v. Middlesex, 7 Metc. 78; Harper v. Richardson, 22 Cal. 251.

What is requisite is, that the law shall provide a prompt, secure, and available mode of obtaining a just compensation. Bloodgood v. Mohawk & Hudson River R. R. Co., 18 Wend. 9; Taylor v. Marcy, 25 Ill. 518; People v. Michigan Southern R. R. Co., 3 Mich. 496; Charlestown Branch R. R. Co. v. Middlesex, 7 Metc. 78; Callison v. Hedrick, 15 Grat. 244; Harper v. Richardson, 22 Cal. 251.

where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Distresses, executions, forfeitures, taxes, &c., are all of this description; wherein every man by common consent gives up that right for the sake of justice and the general good "(o). The law of the land has, however, postponed even public necessity to the sacred and inviolable rights of private property. For no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm, *or the support of govern- [ *167]

ment, but such as are imposed by parliament. By the statute 25

Edw. 1, c. 5 and c. 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. 1, st. 4, c. 1, which enacts, that no tallage or aid shall be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again, by 14 Edw. 3, st. 2, c. 1, the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 Car. 1, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 Will. and M. st. 2, c. 2, it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted; is illegal.

The modes of securing the perpetual enjoyment of these rights.

In the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers, to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,

1. The constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.

[*168]

*2. The limitation of the king's prerogative, by bounds, so certain and notorious, that it is impossible he should either mistake or exceed them without the consent of the people. Of this also I shall treat in its proper place.

The constitution of parliament keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the limitation of the prerogative is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the parliament.

3. A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must

(0) Per Lord Camden, 19 St. Tr. 1066.

at all prescribed times be open and available to the subject, and the law must be duly administered therein. The emphatical words of magna carta(p), spoken in the person of the king, who in judgment of law (says sir Edward Coke()) is ever present and repeating them in his courts, are these; nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam: and therefore every subject, continues the same learned author, for injury done to him in bonis, terris, vel persond, by any other subject, be he ecclesiastical or temporal, without any exception, "may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay." It were endless to enumerate all the affirmative acts of parliament, wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows, or may know if he pleases; for it depends not upon the arbitrary will of any judge, but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of *justice, especially by the prerogative, are restrained. [*169] It is ordained by magna carta(r), that no freeman shall be outlawed, that is put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. 3, c. 8, and 11 Ric. 2, c. 10, it is enacted, that no commands or letters shall be sent under the great seal, little seal, signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right; which is also made a part of their oath by statute 18 Edw. 3, st. 4. And by 1 Will. and M. st. 2, c. 2, it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority, without consent of parliament, is illegal(s).

Not only the substantial part, or judicial decisions, of the law, but also the formal part or method of proceeding, cannot be altered but by or with the sanction of parliament: for, if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old-established forms of the common law. For which reason it was declared in the statute 16 Car. 1, c. 10, upon the dissolution of the court of star-chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel (which were the course of proceeding in the star-chamber, borrowed from the civil law), or by any other arbitrary way whatsoever, to examine, or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.

4. If there should happen any uncommon injury, or *infringement [ *170] of the rights before mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely the right of petitioning the king, or either house of parliament, for the redress of grievances.(63) In Russia we are told(t) that the

(p) C. 29.

(g) 2 Inst. 55.

(r) C. 29.

(8) See The Case of the Seven Bishops, and Note thereto, Broom's Const. L. 408, 493. (t) Montesq. Sp. L. xii. 26.

(63) The first (third) amendment of the constitution of the United States expressly guar anties this right. See Cooley on Const. Lim. 249.

Czar Peter established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition: and, grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640; and, to prevent this, it is provided by the statute 13 Car. 2, st. 1, c. 5, that no petition to the king, or either house of parliament, for any alteration in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or by the major part of the grand jury, in the country(u); and in London by the lord mayor, aldermen, and common council: nor shall any petition be presented by more than ten persons at a time. But it is declared by the stat. 1 Will. & M. st. 2, c. 2, that the subject has a right to petition; and that all commitments and prosecutions for such petitioning are illegal. This latter enactment does not indeed repeal the *earlier statute(x), the provisions of which, though recognized as operative, are not ordinarily enforced. Lastly, we may add that meetings of more than fifty persons for the purpose of petitioning the parliament, held within one mile of Westminster Hall, are illegal(y).

[*171]

5. The fifth and last auxiliary right of the subject which I shall at present mention, is that of having arms for defence, suitable to his condition and degree, and such as are allowed by law. (64) Which is also declared by the same statute 1 Will. & M. st. 2, c. 2, and it is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they

(u) This approval of the grand jury may be given either at the assizes or at the sessions. The punishment for an offence against the act, is a fine to any amount not exceeding 100%, and imprisonment for three months.

(2) At the trial of Lord George Gordon, the whole court, including Lord Mansfield, declared that this statute was not affected by the Bill of Rights, 1 Will. & M. st. 2, c. 2 (see Dougl. 592; 21 St. Tr. 646). Mr. Dunning, however, in the House of Commons, contended, "that it was a clear and fundamental

point in the constitution of this country that the people had a right to petition their representatives in parliament, and that it was by no means true that the number of names signed to any such petition was limited. To argue that the act of Charles was now in force would be as absurd as to pretend that the prerogative of the Crown still remained in its full extent notwithstanding the declaration in the Bill of Rights." See New An. Reg. vol. ii. A. D. 1781.

(y) 57 Geo. 3, c. 19, s. 23.

(64) "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." U. S. Const., Amendments, art. 2 (4). The constitutions of several of the states contain a similar clause. The right of carrying arms for self-protection was discussed in Bliss v. Commonwealth, 2 Lit. 90; Nunn v. State. 1 Kelly, 243; and Ely v. Thompson, 3 A. K. Marsh. 73.

VOL. I.-16