CHAPTER I.

THE CONSTITUTIONAL RIGHT OF THE GOVERNMENT TO APPROPRIATE PRIVATE PROPERTY TO PUBLIC USE.

THE general government of the United States has, in time of peace, a legal right, under the constitution, to appropriate to public use the private property of any subject, or of any number of subjects, owing it allegiance, whenever justified by public necessity. Each of the States claims and exercises a similar right over the property of its own citizens.

THIS RIGHT IS FOUNDED IN REASON.

All permanent governments in civilized countries assert and carry into effect, in different ways, the claim of" eminent domain; " for it is essential to their authority, and even to their existence. The construction of military defences, such as forts, arsenals, roads, bridges or canals, however important for the protection of a country in time of war, might be prevented by private interests, if the property of individuals could not be lawfully taken for public use. Internal improvements in time of peace, however beneficial to the public, requiring the appropriation of real estate belonging to individuals, might be interrupted, if there were no power to take, without the consent of the owner, what the public necessities require. And as it is the government which protects all citizens in their rights to life, liberty, and property, they are deemed to hold their property subject to the claim of the supreme protector

to take it from them when demanded by "public welfare." It is under this quasi sovereign power that the State of Massachusetts seizes by law the private estates of her citizens; and she even authorizes several classes of corporations to seize land, against the will of the proprietor, for public use and benefit. Railroads, canals, turnpikes, telegraphs, bridges, aqueducts, could never have been constructed were the existence of this great right denied. And the title to that interest in real estate, which is thus acquired by legal seizure, is deemed by all the courts of that commonwealth to be as valid, and as constitutional, as if purchased and conveyed by deed, under the hand and seal of the owner.

INDEMNITY IS REQUIRED.

When individuals are called upon to give up what is their own for the advantage of the community, justice requires that they should be fairly compensated for it: otherwise public burdens would be shared unequally. To secure the right to indemnification, which was omitted in the original constitution of the United States, an amendment was added, which provides that private property shall not be taken for public use without just compensation. Similar provisions are found in the constitutions of Massachusetts and of several other States. The language of this amendment admits the authority of the government to take private property for public use, and, being now a part of the constitution, leaves that authority no longer open to question, if it ever has been questioned.

*

* See Amendment, Art. V., last clause.

In guarding against the abuse of the right to take private property for public use, it is provided that the owner shall be entitled to be fairly paid for it; and thus he is not to be taxed more than his due share for

public purposes.

It is not a little singular that the framers of the constitution should have been less careful to secure equality in distributing the burden of taxes. Sect. 8 requires duties, imposts, and excises to be uniform through. out the United States, but it does not provide that taxes should be uniform. Although Art. I., Sect. 9, provides that no capitation or other direct tax shall be laid unless in proportion to the census, yet far the most important subjects of taxation are still unprotected, and may be UNEQUALLY assessed, without violating any clause of that constitution, which so carefully secures equality of public burdens by providing compensation for private property appropriated to the public benefit.

"PUBLIC USE."

What is "public use" for which private property may be taken?

Every appropriation of property for the benefit of the United States, either for a national public improvement, or to carry into effect any valid law of Congress for the maintenance, protection, or security of national interests, is "public use." Public use is contradistinguished from private use. That which is for the use of the country, however applied or appropriated, is for public use.

Public use does not require that the property taken shall be actually used. It may be disused, removed, or destroyed. And destruction of private property may be the best public use it can be put to.

Suppose a bridge, owned by a private corporation, to be so located as to endanger our forts upon the banks of a river. To demolish that bridge for military purposes, would be to appropriate it to public use. To raze private buildings in a city, for the purpose of preventing a general conflagration, would be to apply them to public use. To destroy arms, or other munitions of war, belonging to private persons, in order to prevent their falling into possession of the enemy, would be to devote them to public use. Congress has power, within certain limits, to pass laws providing for the common defence and general welfare, under Art. I. Sect. 8 of the constitution; and whenever, in their judgment, the common defence or general welfare, in a case of public necessity, requires them to authorize the appropriation of private property to public use, whether that use be the employment or destruction of the property taken, they have the right to pass such laws for that purpose; and whatever is done with it is a public use thereof, and entitles the owner to just compensation.

ALL KINDS OF PROPERTY, INCLUDING SLAVES, MAY BE SO APPROPRIATED.*

There is no restriction as to the kind or character of private property which may be lawfully thus appropriated, whether it be real estate, personal estate, rights in action or in possession, claims for money, or for labor and service. Thus the obligations of minor children to their parents, of apprentices to their masters, and of other persons owing labor and service to their masters,

See

* See the resolutions and the amendments of the constitution proposed by Congress on the subject of slavery a short time before this essay was written. Note, p. 132. also Note to the Forty-third Edition, on "Slavery," p. 393.

may lawfully be taken for public use, or discharged and destroyed, for public benefit, by authority of an act of Congress, with the proviso that just compensation shall be allowed to the parent or master. Our government, by treaty, discharged the claims of its own citizens against France, and thus applied their private property to public use. At a later date the United States discharged the claims of certain slave owners to labor and service, whose slaves had been carried away by the British, contrary to their treaty stipulations. In both cases indemnity was promised by our government to the owners; and in case of the slave masters it was actually paid. By abolishing slavery in the District of Columbia, that which was considered for the purposes of the act as private property was appropriated to public use, with just compensation to the owners; Congress, in this instance, having the right to pass the act as a local, municipal law; but the compensation was from the treasury of the United States.

During the present rebellion, many minors, apprentices, and slaves have been relieved from obligation to their parents and masters, the claim for their services having been appropriated to public use, by employing them in the military service of the country.

That Congress should have power to appropriate every description of private property for public benefit in time of war, results from the duty imposed on it by the constitution to pass laws "providing for the common defence and general welfare."

Suppose that a large number of apprentices desired to join the army as volunteers in time of sorest need, but were restrained from so doing only by reason of their owing labor and service to their employers, who