Blackstone rests the doctrine upon necessity, and considers the recognized right to compensation as evidence of the great regard of the law for private property ; while the good of -the individual must yield to that of the community, the legislature alone may interpose to compel the individual to acquiesce, but such interposition is not arbitrary but only upon full Indemnification and equivalent for the in jury thereby sustained. The nature of the transac tion he states thus: "Ali that the legislature does, is to oblige the owner to alienate his possesdierls for a reasouabie price ; and even this is an exer tion of power which the legislature indulges with caution, and which nothing but the legislature can perform." 1 Bla. Corn. 139, a. 19.
This statement by Blackstone of English laiv is to be borne in mind hereafter in considering the nature and origin of the right to compensation, Here we have the right defined with the same limitation which, as will be seen, is sometimes claimed to rest solely on express provisions of written constitutions. And the force of this statement is strengthened not weakened, by the observation of Buller, J., that there were many cases in which an injury is suf fered by individuals for which there is no right of action, as in a case of the destruction of• private property in time of war for the public defence ; id.; 4 Term 794; 3 Wile. 461; 6 Taunt. 29.
Notwithstanding this recognition of the nature of the power the subject of eminent domain as under stood in the United States le practically eliminated from English law and the title itself is usually not to be found in digests or text books of that country. "That there is no eminent domain in English juris prudence," says a recent writer on the subject, "is because the power is included, and the obligation to compensate lost, in the absolutism of parliament." "The only technical term approximating to eminent domain, is compulsory power, as used in acts en abling municipal and other corporations to take property for their use. The multiplication of such acts led to the enactment of several general laws, notably the Lands Clauses Consolidation Act (q. v.), which is a complete code. This act or one of the others of a aimilar class, as the Railway Clauses Consolidation Act, is incorporated by reference in the various special acts ;" Rand. Em. Dom. § 7.
It follows of necessity that English decisions do not apply to the vast number of constitutional ques tiona constantly arising in thia country, though the adherende of English legialation to the same great principle of compensation necessarily resulta in pro ducing a body of law in .England covering moat of
the questiona which are adjudicated in our . own country respecting the construction and application of statutes under' which the power is exercised.
The subject is treated at length in 6 Halsbury, Laws of England 1, under the title of Compulsory Purchase of. Land, where (p. 12) it is pointed out that the earliest act appears to 'be one for supply ing, Gloucester with water in 1641-42, called "The -Bill for the Conduyttes at Gloucester" ; and that there was a similar act in 1543-44 for rebuilding London after the Great Fire.
Different theories are advanced as to the precise nature of the power, and it has been defined to be the right retained by the people or government over the estate of individuals, to reclaim the same for public use,—a kind of reserved right or estate re maining in the sovereign as paramount to the in dividual title. This conception of the right was at one time very generally accepted. The result of this view is to consider the right, theoretically at least, as so much of the original proprietorship re tained by the sovereign power in granting lands or franchises to individuals or corporations, wherever .the common-law theory of original proprietorship prevails. An argument 'by analogy in ,support of .this view is derived from the able examination and explanation of the origin of the jua pub licum in Corn. v. Alger. 7 Cush. (Mass.) 90. See, also, remarks of Daniell, J., in West River Bridge Co. v. Dix, 6 How. (U. S.) 633, 12 L. Ed. 535. Perhaps no better statement of this doctrine is to be found than this: "The highest and most exact idea of property re maining in the government, or in the aggregate body of the people in their sovereign capacity, giv ing a' right to resume the possession of the prop erty in the manner directed by the constitution and the laws of the. state whenever the public good re quires it." Beckman v. R. Co., 3 Paige, Ch. (N. Y.) 73: 22 Am. Dec. 679; or, "The true theory and principle of the matter is, that the legislature re sume dominion over the property, and having re-, sumed it, instead of using it by their agents, to effect the intended public good, and to avoid en tanglement in the: common business of life, they revest it in other individuals. or corporations to be, used by them in such manner as to effect, directly or indirectly, or incidentally, as the case may be, the public good intended." Todd v. Austin, 34 Conn: 78; see also Harding v. Goodlett, 3 Yerg. (Tenn.) 41, 24 Am. Dec. 546 ; Heyward v. City of New York, 8 Barb. (N. Y.) 486; In re Union El. R. Co., 113 N. Y. 275, 21 N. B. 81 ; Biddle v. Hussman, 23 Mo. 697.