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98 HEPBURN'S CASE,
not by any variable and uncertain notions of liberality and benevo-
lence.
Prudential and equitable considerations ought always to curb
licentious invasions of private right, (e) But the government of
this republic by virtue of that eminent domain, which for public
purposes is entrusted to all governments, may take the property of
any individual and cause it to be applied to the use of the public,
on making him a reasonable compensation. But it cannot arbitra-
rily take property from one citizen and bestow it upon another;
because such an act, although not specially prohibited by the con-
stitution, would be contrary to the fundamental principles of the
government itself, (f) If such a transfer of property could not be
openly and directly made, it certainly could not be done covertly
or circuitously; and therefore, in any reference of a case to the
judiciary, as in this instance, the Legislature could not command a
court of justice to stay, or depart from its regular course of pro-
ceeding in a particular case; (g) or arbitrarily to assume any
fact, not admitted by the party, which would give rise to a legal or
equitable principle destructive of the interests of creditors, or of
the right of property of such party; because it would be, in effect,
and indirectly, to transfer such property from one person to
another. (A) Even during the provincial government, when the
General Assembly of the province was held to be endowed with a
sovereign and unlimited power, similar to that claimed by the par-
liament of England, such an assumption of facts and consequent
transfer of property, was considered as so dangerous and unjust an
act as to call forth a solemn protest from one of the most profound
lawyers of his time, (f) Therefore, where the facts have been
assumed by the Legislature in their reference of the case to the
Chancellor, although he may act upon them, as has been done in
some instances, if they should be admitted by the party, or there
should be no opposition; yet, without such consent, it might be
difficult for him to acquiesce under such an assumption where the
rights of a party were materially affected by it. (J)
But as the General Assembly must be allowed to have a large
discretionary power over public property and money in the treasury;
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(e) 3 Secret Jour. Cong. 193.—(f) The Federalist, No. 44; Trustees of the Uni-
versity v. Foy, 2 Hayw. 810, 374; Dash v. Van Kleeck, 7 John, 477-(g) 1827, ch.
141,—(A) Satterlee v. Mattewson , 2 Peter. 380.—(i) Partridge v. Dorsey, 3 H. & J.
307, note.—(j) May v. May, Butter N. P. 112; Campbell's case, 2 Bland, 280.
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