jury. In many states the question of necessity is never submitted to the jury which passes on the question of compensation. It is either settled affirmatively by the legis lature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. Mississippi River Boom Co. v. Patterson, 98 U. S. 402, 404; United States v. Jones, 109 U. S. 513; Cherokee Nation v. Southern Kansas Railway Company, supra. All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution. Bauman v. Ross, 167 U. S. 548, 593." See Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290; District of Columbia v. Lynchburg Invest. Corporation, 236 U. S. 692. § 111. Right of Congress to legislate against laches. In Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254, the Court said: "Congress was not obliged to keep the act of 1875 (admitting the liability of the United States to pay for property taken for a public use) in operation forever, and reasonable opportunity having been afforded to the plaintiffs in error to obtain compensation for the damages sustained by the construction of the improvement, we think they must be deemed to have waived their right to them. Where a statute for the condemnation of lands provides a definite and complete remedy for obtaining compensation, this remedy is exclusive; the common law remedy or proceeding is superseded by the statute, and the owner must pursue the course pointed out by it. Mills, Eminent Domain, 87, 88. It is true that if the statutory remedy be incomplete or imperfect, the owner is not thereby debarred from his common law remedy and may recover his damages in an action of trespass or ejectment. But it does not follow even from this that he has a right, especially after acquiescing in the appropriation of his land for a number of years, to take the law into his own hands, and, manu forti, repossess himself of his own." CHAPTER V THE NEW NATIONAL CITIZENSHIP § 112. Interstate citizenship created by Articles of Confederation. The one particular in which our first Federal Constitution rose above the older Teutonic leagues, after which it was patterned, was embodied in the new principle of interstate citizenship it originated. That principle infused itself neither into the constitution of the old German Empire, nor of Switzerland, nor of Holland. Section 1 of Article IV of the Articles of Confederation provided that "the better to secure and perpetuate mutual friendship and intercourse among the people of different states in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens of the several states." Apart from that invention of an interstate citizenship American statesmen in their first effort exhibited no fertility of resource whatever in the making of Federal constitutions. The Articles of Confederation simply embodied the old story of a federal league, with the federal power vested in a single assembly, without an executive head and without a judiciary, operating only on the states as corporations. § 113. Developed by our second Federal Constitution of 1789. In the words of Tocqueville, our second Federal constitution of 1789 is based "upon a wholly novel theory which may be considered a great discovery in modern political science." That "novel theory" embodies (1) a federal government with the independent power of taxation; (2) the division of the federal head into three Due Process-15 |