tleman from Baltimore city (Mr. Cushing)
upon the subject of the popular voice. I
agree with the gentleman from St. Mary's
and I leave the circumstances in which this
is proposed to be done where he placed it; to
the facts to which he alluded in reference to
the vote of Maryland at the last election.
My learned friend (Mr. Edelen) on yester-
day went so thoroughly over the ground of
the provisions in the bills of rights of all the
States, and also the provision of the Consti-
tution of the United States, which said that
private property should not be taken for pub-
lic use without compensation, that I am re-
lieved from the necessity of referring to that
subject further.
And my friend from St. Mary's (Mr. Bil-
lingsley) has been so full this morning of
authorities which he submitted to show that
no government has ever undertaken to exer-
cise any such power, to inflict any such injus-
tice upon any portion of its citizens, that I
shall add but one authority to those which
he read, and that is an authority going be-
yond the delegated powers of State Govern-
ments or Federal Governments. It is an au-
thority that goes to the fountain head of
sovereignty itself, and puts limits and restric-
tions upon that—the limits and restrictions
of the eternal principles of justice, which no
people any where can violate and set at naught
without incurring the judgments of Him who
rules over them: the God of our fathers; the
God of our people; the God of our Consti-
tution. I say that you cannot show, except
under despotic governments, any exercise of
this power of sovereignty, this right of emi-
nent domain, to take private property, even
of the few, for any public use, without ade-
quate compensation being made.
And I have the pleasure to refer upon this
subject to very high Massachusetts authority,
to no less an authority than that of Judge
Story, who bases his opinion upon authority,
which is admitted upon all hands to be that
of one of the most able and most eminent
writers upon law, viz: that of Vattel. The
case grew out of the question of the franchise
of a ferry, and subsequently of a bridge,
over the river. between Boston and Charles-
town, which cost the builders some $300,000;
and which wan bringing them in a large
revenue. The State of Massachusetts char-
tered another bridge, which subsequently
fell into the hands of the State, which threw
it open to the free use of all its citizens; thus
taking away the revenue of the first bridge.
The question was upon the power of the
Legislature to do that. The decision was in
favor of the State, but Judge Story, in a very
elaborate dissenting opinion, states this pro-
position as unquestionable law:
"But, without stopping to examine into
the true meaning of phrases "—
(That is ''sovereignty" and ''eminent do-
main," by which be means, as he says, the |
right of the sovereign power to take private
property for public use upon adequate com-
pensation)—
"But, without stopping to examine into
the true meaning of phrases, it may be prop-
er to say, that however extensive the prerog-
atives and attributes of sovereignty may the-
oretically be, in free governments they are
universally held to be restrained within some
limits. Although the sovereign power in
free governments may appropriate all the
property, public as well as private, for pub-
lic purposes, making compensation therefor ;
yet it has never been understood, at least
never in our republic, that the sovereign
power can take the private property of A and
give it to B by the right of ' eminent do-
main;' or that it can take it at all, except
for public services: or that it can take it for
public purposes without the duty and respon-
sibility of making compensation for the sac-
rifice of the private property of one for the
good of the whole. These limitations have
been held to be fundamental axioms in free
governments like ours; and have according-
ly received the sanction of some of our most
eminent judges and jurists. Vattel himself
lays them down in discussing the question of
the right of eminent domain, as among the
fundamental principles of government, hind-
ing even upon sovereignty itself. ' If,' says
he, 'the nation itself disposes of the public
property in virtue of this eminent domain,
the alienation is valid, as having been made
with a sufficient power when it disposes in
like manner, in a case of necessity, of the
possessions (the property) of a community
or of an individual, the alienation will be
valid for the same reason. But justice de-
mands that this community or this individ-
ual be recompensed out of the public money ;
and, if the treasury is not able to pay, all
the citizens are obliged to contribute to it.'
Vattel, b. 1, ch. 20, s. 244. They have been
incorporated into most of our State Consti-
tutions and into that of the United States;
and what is most important to the present
argument, with the State Constitution of
Massachusetts."
That is the law founded upon common
sense; upon the plainest principles of equity
and of justice.
It may be said that that applies to certain
species of property; that it does not apply to
slave property. Now, I challenge the pro-
duction of any authority for any such dis-
tinction, Nowhere has any such distinction
ever been made; that property is not only
recognized by the States, not only recognized
by the Constitution of the United States
which carries that recognition as far as its
provisions extend, but, as I have already
said, it is recognized by the law of nations.
I therefore submit to gentlemen, that what-
ever they may choose to do, however they
may set aside these principles of law and jus- |
