to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dispose of the same, there can be no objection to it. But if it be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for the public use, and the residue to be applied to a private use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other purpose private property shall not be taken from one and applied to the private use of another. It is in violation of natural right, and if not in violation of the letter of the constitution, it is of its spirit, and cannot be supported.(a)

§ 327. In the case of Bloodgood v. The Mohawk and Hudson R. R. Co.,(b) a distinguished member of the court for the correction of errors made a most clear, lucid, and forcible argument on this question, which, as we cannot abridge without impairing its force, we give at length. "It has never been allowed to be a rightful attribute of sovereignty in any government, professing to be founded upon fixed laws, however despotic the form of the government might be, to take the property of one individual or subject, and bestow it upon another. The possession and exertion of such a power would be incompatible with the nature and object of all government; for it being admitted that a chief end for which government is instituted, is that every man may enjoy his own; it follows necessarily that the rightful exertion of a power by the government of taking arbitrarily from any man what is his own for the pur

(a) See also Dunn v. City Council, Harp. R. 189. (b) 18 Wend. 56.

pose of giving it to another, would subvert the very foundation principle upon which the government was organized, and resolve the political community into its original chaotic elements. This power, therefore, instead of being acknowledged, was expressly repudiated by the Roman law at the height of imperial despotism; so that even when the lives of subjects were wantonly sacrificed by thousands at the remorseless biddings of cruel and capricious tyrants, no idea seems to have been entertained that they could, except by the interposition of legal forms, transfer the property of one subject to another. Even Hobbs, the most ingenious of all advocates for the absolute powers of government, does not go further with his doctrine on this point than to say, that the property which a subject has in his goods, consists not in a right to exclude the sovereign from the use of them, but consists in a right to exclude all other subjects from a use of them. But no approved writer on public law will be found to go as far as Hobbs in vindicating the unqualified right of the sovereign to assume at will the property of the subject. Every other writer is disposed to recognize a distinction between right and power, as applied to sovereign and subject, and to acknowledge that a rightful government must be founded on some other principle than that of mere force. Hence, an original compact, founded in the mutual necessities of the individuals about to constitute a political community, is implied in all cases; and the respective rights of sovereign and subject are referred to this supposed compact for their ascertainment. It follows, of course, that as the terms of this compact are capable of being shown only argumentatively, differences of opinion will exist in regard to them. To avoid this difficulty is one great purpose of written constitutions. But though differences of opinion exist as to the extent of the principle of the inviolability of private property, the secure

possession and undisturbed enjoyment of property by individuals, is universally admitted to be the great cement of the social compact, and every publicist therefore feels the necessity of prescribing some safeguards for it against the encroachments of the sovereign power. At the same time all are ready to acknowledge it to be a principle of the social compact, assented to by the original members of it, that in public emergencies the right of individuals over their property must yield to the superior necessities of the state. Whether this principle be denominated the right of transcendental property, or of eminent domain; or as is more properly called by Grotius, the force of super-eminent dominion; it means nothing more or less than an inherent political right, founded on a common necessity and interest, of appropriating the property of individual members of the community to the great necessities of the whole community. This principle or right does not rest, as supposed by some, upon the notion that the state had an original and absolute ownership of the whole property possessed by the individual members of it, antecedent to their possession of it, and that their possession and enjoyment being subsequently derived from a grant by the sovereign, it is held subject to a tacit agreement or implied reservation, that it may be resumed; and all individual rights be extinguished by a rightful exertion of sovereign power. Such a doctrine is bringing the principles of the social systein back to the slavish theory of Hobbes, which, however plausible it may be in regard to lands once held in absolute ownership by the sovereignty, and directly granted by it to individuals, is inconsistent with the fact that the security of pre-existing right to their own property is the great motive and object of individuals for associating into governments. Besides, it will not apply at all to personal property, which in many cases is the entire creation

of its individual owner; and yet the principle of appropriating private property to public use is full as extensive in regard to personal as to real property. But in whatever this principle is founded, the difficulty is not the less in determining the limits that rightfully bound it. On this point, the writers upon public law are not agreed, nor is any one of them, that I have been able to consult, satisfactory; for, while all admit that the sovereign or transcendental propriety consists in the right of taking the property of individuals for the necessities of the state, no one succeeds in defining clearly the degree of necessity that justifies the exertion of this right: perhaps from the nature of the case, such a definition is impracticable. Grotius(a) asserts that the power can be exerted rightfully, not only in cases of extreme necessity, but for those of public utility, (ad publicam utilitatum;) while Puffendorf says, that "transcendental propriety never takes place but in the extremities and necessities of the commonwealth;" and yet he quotes from Bæcler what he says in his commentaries upon Grotius, "that this necessity hath its different degrees, and that it is not only in the last extremity this power should be made use of," though Bæcler admits “that it should not be extended too far, but should be reduced to equity as nigh as possible." Bynkershoeck insists that private property connot be taken on any terms without the consent of the owner, for purposes of public ornament or pleasure: and as Burlamague in his principles of law(b) speaks of this right as not to be exercised, "except in cases where it is absolutely necessary for the public good;" and again,(c) that "it takes place only in case of necessities of state, which ought not to

(a) Lib. 3, ch. 20., sec. 7. (b) Page 145.

(c) Page 130.

have too great an extent, but it should be tempered as much as possible with the rules of equity." No doubt it was in full view to the discordant opinions expressed by writers on public law, in regard to the application of the principles of super-eminent dominion, and with a mature design of affording special and additional protection to the citizen against the exertion of it by the government, that the framers of our national constitution adopted the clause in question; and it is reasonable to presume, that from the same motives and for the same object, it was transcribed literally from that instrument into the constitution of this state. In both instruments it is designed to be as well a limitation as a definition of the right of the respective governments as sovereign political powers, to interfere with the otherwise absolute right of the citizen, to the undisturbed possession and enjoyment of his own property. It is therefore, I think, to be construed in both cases as equivalent to a constitutional declaration, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.

He

§ 328. In another case,(a) the doctrine was held, by Justice Bronson, that private property could not be taken for private use; that the statutes of the state of New York which authorized the laying out of a private road over the lands of another, was unconstitutional. discussed in a very able manner the constitutionality of such an act under our constitution, and as to what was to be implied under the general grant of legislative power contained in the constitution. He held, under our constitution, 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. We no where found

(a) Taylor v. Porter, 4 Hill, 140.