With respect to compensation, Kent says: "This principle, in American constitutional jurisprudence, is founded in natural equity, and is laid down by jurists as an acknowl edged principle of universal law;" 2 Com. 339.
It would seem to be the most satisfactory conclusion both upon reason and authority that neither the right of the state to take nor the right of the individual to compensa tion required a constitutional assertion. The right to take private property for public use does not depend on constitutional provisions, but is an attribute of sovereignty ; Sinnick son v. Johnson, 17 N. J. L. 129, 34 Am. Dec. 184; Raleigh & G. R. Co. v. Davis, 19 N. C. 451; it (the right) exists, and the only lim itation upon its exercise is that imposed by the state or federal constitution; Wilson•v. R. Co., 5 Del. Ch. 524.
So also- the right to compensation is an in cident to the exercise of the povilei, insep arably connected with it ; Sinnickson v. John son, 17 N. J. L. 129, 34 Am. Dec. 184; "this is an affirmance of a great doctrine estab lished by the common law for the protection of private property ;" 2 Story, Const. § 1790 ; "the obligation attaches to the exercise of the power, though it Is not provided for by the state constitution, or that of the United States had not enjoined it ;". Bonaparte v. R. Co., Baldw. C. C. 220, Fed. Cas. No. 1,617. "If by the assertion that this right existed at common law independent of the declara tion of rights, is meant that compensation in such case is required by a plain dictate of natural justice, it must be conceded. The bill of rights declares a great principle ; the particular law prescribes a practical rule by which the remedy for the violation of right is to be sought and afforded ;" Shaw, C. J., in Hazen v. Essex Co., 12 Cush. (Mass.) 475. In New Hampshire, although the con stitution did not contain an express provision requiring compensation, "yet it has been con strued by the courts, in view of the spirit and tenor of the whole instrument, as pro hibiting such taking without compensation; and it is understood to be the settled law of the state, that the legislature cannot con stitutionally authorize such taking without compensation ;" Eaton v. R. R., 51 N. H. 504, 12 Am. Rep. 147: It is a condition precedent to its' exercise under a statute that it make reasonable provision for compensation to the owner of the property taken; Sweet v. Rech el, 159 U. S. 380, 16 Sup. Ct. 43, 40 L. Ed. 188 ; Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 16Z 7 Am. Dec. 526.
There are dicta which countenance the opinion that compensation is not of the es sence of eminent domain, that the usual con stitutional clause is restrictive, not declara tory, so that, were it omitted, the state could properly take property without paying for it ; Rand: Em. Dom. § 226, citing Mississippi
& R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015 ; Clark v. Town of Saybrook, 21 Conn. 313 ; Wilson v. R. Co., 5 Del. Ch. 524; In re Furman St., 17 Wend. (N. Y.) 649 ; Orr v. Quimby, 54 N. H. 590, 647. In one of these cases the lan guage used is "the provision found in the federal and state constitutions for just com pensation for property taken is no part of the power itself, but merely a limitation up on the use of it, a condition upon which it may be exercised ;" U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346, 27 L. Ed. 1015.
One of the text writers on the subject takes this view; Lewis, Em. Dom. § 10; and argues it with great earnestness, treating it as the same question discussed by Sedgwick and Cooley and referred to supra under the title Constitutional (q. v.), whether there are limitations of legislative power other than those contained in the constitu tions, federal and state. The real question involved in the relation of compensation to eminent domain is a different one. It Is not whether-thesdiereign powers of government exercised. by American state legislatures are subject to undefined limitations, not embodied in the written constitution, but what is the 'sovereign power which we term eminent domain, as recognized and ,exercised by governments long before written conetitutione were known. It is true that some courts in discussing this subject have fallen into the same conftision of ideas, but the dis tinction none the less exists and should be borne in mind. Is it the right ,to take private property arbitrarily, or • only to take it on making compensa tion? Lewis thinks "the question has lost most of its practical interest from the fact that all states except one (North Carolina), now have an express limitation in their organic law touching the exercise of this power." It is submitted, however, that. the precise definition and true limitation of so auto cratic a governmental power can never become a matter of indifference. So long as one state consti tution is silent on the subject of compensation it remains a practical question in American constitu tional law and the existence of a reserved power to amend or abolish any existing constitution, coupled With the prevalent tendency 'to attack, and impair the right to private property, must necessarily keep it such, independently of the theoretical interest in maintaining correct definitions of the inherent rights of sovereignty.