252 HI6H COURT OF CHANCERY.

by one of the counsel for the defendants is sound, that the
law-making power of the state governments is unrestrained,
except by the constitution; still, as it seems to me, the appro-
priation, by law, of private property to the public use, without
compensating the owner, could not be tolerated.

The sixth article of the bill of rights separates the legislative,
executive and judicial departments of the government, and
makes the separation permanent. And, the 21st article of the
same instrument says, "that no freeman ought to be taken or
imprisoned, or disseized of his freehold, liberties or privileges,
or outlawed, or exiled, or in any manner destroyed, or deprived
of his life, liberty or property, but by the judgment of his peers,
or the law of the land."

These provisions were, undeniably, intended as restraints
upon the legislative power, by means of the courts of justice,
charged with the administration of the law. The words, "by
the law of the land," which are copied from Magna Charta,
are understood to mean, due process of law, that is, a regular
trial according to the course and usage of the common law;

and the words, "the judgment of his peers," mean, a trial by
jury according to the course of the same law. 2 Kent's Corn., 13 ;

9 G. & J, 412.

The legislative department of the government makes the law, or
prescribes general rules for the government of the community;

but it cannot deprive an individual of his property—because,
to do so, is to pronounce a sentence, and not to enact a law ;

and, in the language of the Court of Appeals, to pronounce
sentence without a hearing, or giving to the party whose prop-
erty is taken, an opportunity of defending his rights against
the attempted invasion.

This view of the subject does not interfere with the due ex-
ercise of the right of eminent domain, which gives to the legis-
lature the power to take private property for the public use.
When this power is exerted, the government is bound to pro-
vide some tribunal for the assessment of the compensation, be-
fore which the parties may meet and discuss their rights, face
to face. But, to say that the legislature may, by its own act,