HARNESS VS. CHESAPEAKE AND OHIO CANAL CO. 253

and without the intervention of any judicial tribunal, take an
individual's property from him, when the constitution de-
clares, he shall only be deprived of it by the judgment of his
peers, or by the law of the land, is to confer upon the legisla-
ture judicial powers, and to confound those departments of the
government which the declaration of rights says, shall be kept
forever separate and distinct.

It is believed, however, that the legislature of this state has,
in no instance, in the exercise of the right of eminent domain,
omitted to provide compensation to the owner of the property,
taken for the public use.

By the 15th section of the act of 1824, chapter 79, passed to
confirm an act of the legislature of Virginia, incorporating the
Chesapeake and Ohio Canal Company, provision is made for
condemning the lands of individuals for the purpose of making
the canal, in case the owners and company cannot agree, or in
case the owners are incompetent, or absent from the state. The
law in either of these contingencies provides a tribunal for the
assessment of the compensation or indemnity to the owner, and
directs that the valuation placed upon the land by this tribunal
shall be paid by the canal company, to the owner or his legal
representatives; and, that on payment thereof, the company
shall 'be seized of the land condemned, either absolutely, or of
such less quantity and duration of interest or estate, as may have
been valued. It is very certain, therefore, that in this case,
and with regard to the powers of this company, the legislature
did not intend, through its instrumentality, to appropriate pri-
vate property to the public use, without compensating the own-
er. The office of the jury, summoned under the provisions of
this section of the act, is to determine the value of the land con-
demned; and it declares, that their valuation shall be conclu-
sive on all persons, and shall be paid by the company to the
owner of the land or his legal representatives. And the lan-
guage of the law is explicit, that the title of the company,
whether absolute or qualified, shall vest only on payment of the
money.

However true it may be, as has been argued, that the canal
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