tween a public use and a public interest in a particular use of private property, and confers on the legislature the right of determining, first, that the public interest will be promoted by the particular use of private property; and next, because the public interest will be promoted by such use, that therefore it is a public use; and finally, it being a public use, it becomes a mere question of expediency with the legislature whether they shall authorize private property to be taken to subserve it or not. It seems to me that such a construction of legislative power is inconsistent with the secure possession and enjoyment of private property, and repugnant to the language and object of the constitutional provision. Indeed it concedes to legislative discretion a wider range than I think could be maintained for it on the principles of natural law, if we had no written constitution.

cising exercise

"It is not denied that the legislature is the most appropriate organ of the sovereignty of the state for exerof eminent domain, but they can only at or power in subordination to the constitutional authority; which authority they cannot enlarge or modify. The condition that the property must be taken for public use is as much above their reach and control as it is above the reach and control of the lowest functionary of the government, who, like them may have occasion to invoke this attribute of sovereignty in an emergency of some humble department of the public service, with which he may have been charged. The legislature may fitly determine when and under what circumstances as to the mode of taking-private property shall be taken for the public use. But it by no means follows, as seems to have been supposed, that the legislature can determine that a particular use is a public use of private property, within the meaning of the constitution. The nature of the use to which the legislature may dedicate the property of a citizen, is not established

by the name which they give to it, but is an inherent and inseparable quality or characteristic which cannot be changed, however it be denominated. Much less are we to confound the notion of legislative discretion with that of sovereign power. The legislature is not the sovereignty of the state, but only one of the organs of the sovereignty, and a restricted organ in regard to all matters prescribed by the constitution, and necessarily, therefore, cannot exercise any power which by the fundamental compact is prohibited to the sovereignty. It is prohibited to the government of the state, even in its sovereign capacity, to take private property except for public use; consequently it is not in the power of the legislature to authorise private property to be taken for any other purpose. Nor can this restriction, which is upon both the government, as a sovereignty, and upon the legislature, as its organ, be evaded, or the power which it limits be extended, under whatever form or by whatever name it may be attempted. If right of eminent domain, or of superem it comes to the same result, for these are my other names for sovereign power, and are equally included and controlled by the constitutional restriction. Therefore, to insist that the determination or expression by the legislature that it is for the public interest and expedient in a particular case to exert the right of eminent domain, or the power of sovereignty, ipso facto, establishes that the power of sovereignty is rightfully exerted, is in effect to insist that the power of the legislature is above the power of the constitution, and to prove that instead of possessing a government of defined and limited powers, we have one with powers more extensive and irresponsible than those of the regal governments of Europe. But happily for us, this is not so, the legislature is not the creator or judge of its own powers; but is the creature of the constitution, and all its acts must be in sub

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ordination to it. In the examination, therefore, of a question involving the construction of constitutional powers, courts are to be guided by the constitution itself, and are not to be controlled by the acts of the legislature, or to be further influenced by them than a due respect for the apparent opinions of a co-ordinate branch of the government may demand. Conceding freely to the legislature the right of appropriating private property to the public use, but denying confidently to it the power of making that a public use which in its nature is not."

§ 143. In the case of Goshen v. Stonington, (a) Hosmer, J., dissented from the opinion of those who assert the omnipotence of the legislature in all cases, where the constitution has not imposed an explicit restraint. He held, if there should exist a case of direct infraction of vested rights, too palpable to be questioned, and too unjust to admit of vindication, he could not avoid considering it a violation of the social compact, and within the control of the judiciary. He asked the question-If a law were made, without any cause, to deprive a person of his property, or to subject him to imprisonment, who would not question its legality, or who would carry it into effect?

§ 144. The case of Wilkinson v. Leland, in the U. S. Court,(b) was an action of ejectment by the heirs at law of Cynthia Jenks, to whom her father by his will in 1787 devised the premises in question in fee, subject to a life estate then in being, but which expired in 1794. The testator appointed his wife Cynthia his executrix. He died in New Hampshire, and his widow proved his will in the court of probates in that state, and took letters of administration. The estate being represented as insolvent, the executrix in 1790 obtained an order from the

(a) 4 Conn. R. 225.

(b) 2 Peters' Rep. 654.

judge of probates in New Hampshire to sell so much of the real estate of the testator as should, with the personal estate, be sufficient to pay his debts. The premises in question were situate in the state of Rhode Island; the will was never proved in that state nor administration taken out there. In 1791 the executrix sold the premises to certain persons under whom the defendant claimed by a deed which recited her authority to sell, and in which she purported to act as executrix in the sale. She entered into a covenant with the purchaser to procure an act of the legislature of Rhode Island ratifying and confirming the title granted. She accordingly made an application to the legislature of Rhode Island for that purpose, stating these facts in her petition, and thereupon an act was passed by the legislature in June, 1792, granting the prayer of the petition, and ratifying the title.

The validity and effect of this act was the main question in this cause. Mr. Webster, as counsel, on the argument contended that it was of no importance to the question before the court, whether there were any restrictions or limitations to the power of the legislature of Rhode Island imposed by the constitution; for, if at this period there was not a general restraint on legislative power, there was an end of private property. He insisted though there were no prohibitions in the constitution, the legislature were restrained from committing flagrant acts, from acts subverting the great principles of republican liberty and of the social compact, such as giving the property of A. to B. Mr. Justice Story, who delivered the opinion of the court, stated that the objections taken by the defendant's counsel to this act are, in the first place, that it is void as an act of legislation, because it transcends the authority which the legislature of Rhode Island can rightfully exercise.

He admitted that the objection must be decided not upon principles of public policy, but of power, precisely

as the state of Rhode Island ought to decide it. He then stated that Rhode Island was the only state in the Union which had not a written constitution of government, containing its fundamental laws and institutions. Until the revolution in 1776, it was governed by the charter granted by Charles II., in the fifteenth year of his reign, (1664.) This charter had ever since continued, in its general provisions, to regulate the exercise and the distribution of the powers of government. It had never been formally abrogated by the people; and except so far as it had been modified to meet the exigencies of the Revolution, it might be considered now as a fundamental law. By this charter, the power to make laws was granted to the general assembly, in the most ample manner. What was the extent of the power thus granted, must be opened to explanation as well by usage, as by the construction of the terms in which it is given. He held that in a government professing to regard the great rights of personal liberty and of property, and which, like this, was required to legislate in subordination to the general laws of England, it would not slightly be presumed that the general principles of magna charta were to be disregarded, or that the estates of its subjects were to be taken away without trial, without notice, and without offence; even if such authority could be deemed to have been confided by the charter to the general assembly of Rhode Island, as an exercise of transcendental sovereignty before the Revolution, it could scarcely be imagined that that great event could have left the people of that state subject to its uncontrolled and arbitrary exercise. He was of the opinion that government could scarcely be deemed free, where the rights of property were left solely dependent upon the will of the legislative body, without any restraint. The fundamental maxims of a free government, seemed to require that the rights of personal liberty and private property should be