instead of this the community require him to render up the whole of his lands to the use of the public, since their necessity demands it. Then they must compensate and indemnify him for ninety-nine hundredths of the value of the estate to be taken from him; by which all will contribute equally to the public wants.

But can they compel him to relinquish his whole land to answer a public necessity, even upon awarding to him a full indemnity? Can they thus outrage his sense of property? May he not resist it?

He would resist it even unto death, if he were endowed only with the instinct of acquisitiveness, and self-esteem, with full defensive impulses. But such a being would not be human.

Our man is a rational moral being. He loves and cherishes human society. He is just-and would do unto others, whether collectively or individually, as he would desire them to do unto him. He is benevolent, and desires the happiness of his brethren. He will as cheerfully relieve a public as a private necessity. He loves not mankind collectively less than man individually-and his selfish feelings are overborne by his superior sentiments. He is prompted to make a surrender of his local attachments, and personal convenience, upon the altar of the public good. And while on the one hand, his very nature impels him to this act, the community, on the other, are impelled by their sense of justice, to compen sate and indemnify him for the property of which their necessity deprives him. Hence a great public necessity can be relieved without offence to private right, if only a proper public necessity require the surrender, and enlightened public justice award the compensation. But let it ever be remembered it is the community-the State only-that can claim to divest a private citizen of his property, and that only in cases when the general safety or happiness is to be greatly subserved; for, as between individuals, each man is naturally inclined to resist every encroachment upon his private possessions, and even the State cannot present a case which will prompt the emotions which impel to a surrender of pri

vate property, except it make the general safety or happiness the exciting cause. And still the measure of public justice must be full. Private property is sacred to the owner for the preservation of his life, and the gratification of his sentiments. He hath a safety and necessity to provide for as well as the community. The State hath the means of providing for the safety and happiness of its members; and when it divests an individual of the means embraced to answer the demands of his nature, it must restore him, as far as lies in its power, by an adequate substitute, in order that the safety and happiness of all may be duly cared for and protected.

This doctrine is thus laid down by Sir William Blackstone:

"So great is the regard of the law for private property, that it will not authorize the least violation of it-no, not even for the general good of the whole community. If a new road, for instance, were to be laid through the grounds of a private person, it might, perhaps, be extensively beneficial to the public; but the law permits no man or set of men to do this without the consent of the owner of the land. In vain may it be urged that the good of an individual ought to yield to the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Beside, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this and similar cases the Legislature alone can, and, indeed. frequently does interfere, and compel the individual to acquiesce. But how does it interfere and compel? not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual treating with an individual for an exchange. All that the Legislature does is, to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power which the Legislature indulges with caution, and which nothing but the Legislature can perform."

Chancellor Kent says:

"It must undoubtedly rest as a general rule in the wisdom of the Legislature to determine when public uses require the assumption of private property; but if they should take it for a purpose not of a public nature, as if the Legislature should take the property of A. and give it to B., or if they should vacate a grant of property, or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private rights, and the law would clearly be unconstitutional and void."'

The Legislature, then, cannot take the private property of one man and give it to another, even upon an award of full compensation. A law doing this would be utterly void, as

offensive to natural reason and justice. If this cannot be done in the whole, it cannot be done in part-since all offence of this sort is to be avoided. It is worth while, then, to consider the character of those laws which authorize incorporated companies to deprive private owners of their property, for the purpose of constructing works of internal improvement. Do not these laws unwarrantably infringe upon private right? In general these companies execute works of public convenience only; the State always constructs her works of public necessity, such as fortresses, post-roads, &c., in the exercise of the sovereign power. My first objection lies to the case itself, of taking the private property of a citizen by a corporate body. Mere public convenience is not enough it is not so high and sacred as the right invaded.It cannot move a private owner to the sacrifice of his right. Take a rail-road, for instance; it may address the organs of time and destructiveness, but no man's benevolence is so wounded at seeing people move at only a horse's speed as that he will surrender his garden and his lawn, his groves and sweet fields, to lay the track of whizzing engines, in order that his brother may get on faster. In such a case, if he will not volunteer in favor of a private company, the law ought not to compel him to part with his estate. does not command him. There is nothing great or pressing in the matter. A man may ride fast and be no better, and slow and be no worse. In this case the owners ought to be left free to grant or withhold their property at their option. This might, in a few cases, retard public improvements, but it would advance public justice, which is of far greater importance.

The case

It may be oftentimes difficult to distinguish between works of public necessity, and convenience; but the strict rule is safest when there is danger of infringement upon private right. A just government will protect the rights of the meanest citizen from invasion; and especially will it not authorize violence to his rights; and when the case is doubtful, it ought to abstain altogether. It is a fearful thing to behold the energies of a sovereign State lent to a corporation, to assist it

to wrest from a private citizen his property-to see his unequal struggle-to see him fall at length beneath the very power that ought to protect him--and then to see him rise only to loath and curse that power, which, if well directed, he would have reverenced and blessed.

The safety of private right, in this respect, lies in narrowing the construction of public necessity, and confining the right of eminent domain to cases of great urgency, when the safety or happiness of the community imperiously demands the surrender of private property. In such cases the public demands will be cheerfully acquiesced in by every good citizen. In these instances, when a good man would spontaneously yield his right, an indifferent one can be compelled to make the surrender.

But I regret to say that the reverse of all this is the established doctrine of the State of New-York, and of most of the States of the Union. And so far to the reverse is this doctrine carried, that the Supreme Court of Tennessee have solemnly adjudged a law to be constitutional which authorized a company to take the lands of a private person for the purpose of erecting a common grist mill thereon, at which all the inhabitants of the neighborhood should be entitled to have their grinding done in turn, and at fixed rates, although the whole property and profits of the mill were to belong to the proprietors thereof, who, by force of this law, wrested the property from its owner! A high judicial officer of this State has hunted up this case and approved it as authority. He says:

"It is true in that case each individual could not go to the mill and grind his own grist, but still it was the public utility of having such a mill, where each individual had an equal right to be served, which authorized the taking of private property for such purpose, upon payment of a full compensation for the same.'

This is grinding out law with a vengeance! He lays great stress upon the circumstance of each man having a grist being served in turn as the point of public utility to be subserved by this sacrifice of private right. It seems to me that no one but an individual who, instead of being at school

had been used to convey grists to be ground, and who had been greatly oppressed and nearly heart-broken by not being “served in turn," could have appreciated so highly this species of "public utility."

CHAPTER X.

OF INTELLECTUAL PROPERTY.

PROPERTY may be physical and tangible, as land and chattels; or it may be intellectual and ideal, as the immediate offspring of the intellect and sentiments, existing in thought or embodied in language.

In the infancy of a State, the idea of property is limited to physical possessions, and the laws do not recognize those things as the subjects of this right which come of a higher civilization. The savage is contented if his canoe, his cabin and his scanty store of provisions are secure from depredation-these are all that he hath, and their protection is all that he can require. The civilized man can ask no more than this-that all he hath shall be protected; but he can demand so much of right. Now, as civilization advances, not only do the subjects of corporeal possession, the objects of material property, increase to infinite variety, but incorporeal rights originate and are acknowledged by every civilized State. In a rude state of society, while the person and tangible property may be protected by the laws, the character and delicate moral interests are left for individual defence and vindication. But in a more advanced stage of society, the character, domestic affections, and the moral sensibilities of mankind, demand and receive a measure of protection from the State. These are incorporeal rights, existing in idea, and are wholly devoid of that tangibility and capacity of possession, which a rude conception of rights ascribes to