under a prior act, and hence impaired the obligation of a contract. In the consideration of that question he says: "Is the power of the legislature competent to the annihilation of such title, and to a usurpation of the property thus held? The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation can never be controverted. But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. Conveyances have been made; those conveyances have vested legal estates; and, if those estates may be seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact.

“When, then, a law is in its nature a contract; when absolute rights have vested under that contract; a repeal of the law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community.

"It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?

"To the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection."

Mr. Justice Patterson also, in another case, in which this precise question, it is true, does not arise, as the

case was decided on a constitutional question, makes the following remarks:

"Men have a sense of property; property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects that induced them to unite in society. No man would become a member of a community in which he could not enjoy the fruits of his honest labor and industry. The preservation of property then is a primary object of the social compact, and, by the late constitution of Pennsylvania, was made a fundamental law. Every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompense in value. This would be laying a burden upon an individual, which ought to be sustained by the society at large. The English history does not furnish an instance of the kind; the parliament, with all their boasted omnipotence, never committed such an outrage on private property; and if they had, it would have served only to display the dangerous nature of unlimited authority; it would have been an exercise of power and not of right. Such an act would be a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation. It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with the comfort, peace, and happiness of mankind; it is contrary to the principles of social alliance in every free government; and lastly, it is contrary both to the letter and spirit of the constitution. In short, it is what every one would think unreasonable and unjust in his own The next step in the line of progression is, whether the legislature had authority to make an act,

case.

divesting one citizen of his freehold and vesting it in another, even with compensation. That the legislature, on certain emergencies, had authority to exercise this high power, has been urged from the nature of the social compact, and from the words of the constitution, which says, that the house of representatives shall have all other powers necessary for the legislature of a free state or commonwealth; but they shall have no power to add to, alter, abolish, or infringe any part of this constitution. The course of reasoning, on the part of the defendant, may be comprised in a few words. The despotic power, as it is aptly called by some writers, of taking private property, when state necessity requires, exists in every government; the existence of such power is necessary; government could not subsist without it; and if this be the case, it cannot be lodged any where with so much safety as with the legislature. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first necessity. There is force in this reasoning. It is, however, difficult to form a case, in which the necessity of a state can be of such a nature, as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen. It is immaterial to the state, in which of its citizens the land is vested; but it is of primary importance, that, when vested, it should be secured, and the proprietor protected in the enjoyment of it."

Again, (on page 314,) he exclaims: "Shame to American legislation! That in England, a limited monarchy, where there is no written constitution, where the parliament is omnipotent, and can mould the constitution at pleasure, a more sacred regard should have been paid to property, than in America, surrounded as we are with a blaze of political illumination; where the legislatures are limited; where we have republican governments, and

written constitutions, by which the protection and enjoyment of property are rendered inviolable."

In another part of the same decision he adds: "Omnipotence in legislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the legislature. Wretched situation, precarious tenure! And yet we boast of property and its security, of laws, of courts, of constitutions, and call ourselves free!"

In the case of the University of Maryland v. Williams, which was a case involving the question, whether an act of the legislature of Maryland, which took away the vested rights of the regents, was void as being in conflict with the constitution of the United States; Chief Justice Buchanan, after deciding that it was, adds, "but the objection to the validity of the act of 1825 does not rest alone for support upon the construction of the constitution of the United States.

Independent of that instrument, and of any express restrictions in the constitution of the state, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact, (in this country at least,) the character and genius of our government, the causes from which they spring, and the purposes for which they were established, that rises above and restrains, and sets bounds to the powers of legislation, which the legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty, and property of the citizen from violation in the unjust exercise of legislative power. To say that the legislature possesses the power to pass capriciously, or at pleasure, a valid act, taking from one his property and giving it to another, would be in this age, and in this state, a startling proposition to which the assent of none could be yielded,

§ 137. In Taylor v. Porter,(a) which was a case involving the constitutionality of the provisions of the Revised Statutes of New York, authorizing a private road to be laid out over the lands of a person without his consent: Mr. Justice Bronson, after admitting the right to take private property for public use, making just compensation therefor, held; there was no provision in the constitution that just compensation should be made to the owner when his property is taken for private purposes. If the power exists to take the property of one man and transfer it to another, it may be exercised without any reference to compensation. The power of making bargains for individuals has not been delegated to any branch of the government, and if the title of A. can be without his fault transferred to B., it may as well be done without as with consideration. This view of the question was sufficient to put them on enquiring where can the power be found to pass such a law, as that under which the defendant attempted to justify? It is not to be presumed that such a power exists, and those who set it up should tell us where it may be found. Under our form of government, the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body' of the people; like other departments of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, ARE UTTERLY VOID.

Where then shall we find a delegation of power to take the property of A. and give it to B., either with or without compensation?

Only one clause in the constitution can be cited in

(a) 4 Hill's N. Y. Rep. 146.