524 



INDEMNITY. 



indemnify Mr. Grant for the loss of his property under 

 such circumstances? Was there apparent to the com- 

 manding officer such a necessity as justified its de- 

 struction? Was it taken for public use? A proper 

 application of legal principles to the facts of the case 

 will give a solution 01 these inquiries. 



Every civilized State recognizes its obligation to 

 make compensation for private property taken under 

 pressure of State necessity and for the public good. 

 The State is the transcendental proprietary of all the 

 property, real and personal, of its citizens and sub- 

 jects. "This transcendental right, the eminent domain 

 of the State, in all countries where rights are regulated 

 by law, is so exercised as to work no wrong, to inflict 

 no private injury without giving to the party aggriev- 

 ed ample redress. This doctrine was not engrafted on 

 the public law to give license to despotic andarbitrary 

 sovereigns. It has its foundation in the organization 

 of societies and States, and is as essential to a republic 

 as to the most absolute despotism. It is of the very 

 essence of sovereignty, and without it a State could 

 not perform its first and highest duty, its own preser- 

 vation. Vital as is this high prerogative of States, it 

 must be exercised in subordination to the clear princi- 

 ples of justice and right. Whenever from necessity or 

 policy a State appropriates to public use the private 

 property of any individual it is obliged by a law as im- 

 perative as that in virtue of which it makes the appro- 

 priation, to give to thej party aggrieved redress com- 

 mensurate with the injury he has sustained. Upon 

 any other principle the social compact would work 

 mischief and wrong. The State would have the right 

 to impoverish the citizen it was established to pro- 

 tect ; to trample on these rights of property, security for 

 which was one of the great objects of its creation. 



Every elementary writer of authority^ sustains the 

 views here taken of the duty and obligation of States. 



It may safely be assumed, as the settled and funda- 

 mental law of Christian and civilized States, that gov- 

 ernments are bound to make just indemnity to the 

 citizen or subject, whenever private property is taken 

 for the public good, convenience, or safety. 



The limitation imposed upon the Government of the 

 United States, in the exercise of its right of eminent 

 domain, by the fifth article of the amendments of the 

 Constitution, is a solemn recognition of this settled 

 and fundamental law of States, and binds the Govern- 

 ment to the observance of the principles of justice 

 and right, in its dealings with the citizen, with the 

 force of organic law. In this article it is declared that 

 " private property shall not be taken for public use 

 without just compensation." 



Was the property for which compensation is now 

 claimed taken in virtue of the right of eminent do- 

 main ? or was it an exercise of right, under the law 

 of overruling necessity ? or was the property destroy- 

 ed without right? and must the claimant look to the 

 personal responsibility of those directly concerned in 

 its destruction ? Eminent domain is a civil right, and 

 rests upon property. It springs from the social com- 

 pact, and is inherent in the sovereignty charged with 

 the duties of civil government. The right arising out of 

 extreme necessity is a natural right, older than States, 

 and is in full force when society and property are un- 

 known. It is the law of the savage as well as the most 

 enlightened, and attaches to every individual under 

 whatever conditions he may be placed. It is the right 

 of self-defence, of self-preservation, and has no con- 

 nection whatever with the superemment right of the 

 State. The one may be fettered by constitutional 

 limitations ; the other is beyond the reach of constitu- 

 tions. Both may be said to depend upon necessity for 

 their lawful exercise ; but the one is a State, the other 

 an individual necessity. The necessity in the one case 

 admits of degrees, and is frequently no more than the 

 public convenience, utility, or good ; in the other the 

 right can be exercised only in the last degree, when 

 the necessity is imperative and overruling. It admits 

 of no choice of remedies and of no delay, and from the 

 nature of the right is beyond and transcends the sov- 

 ereign authority. This subject underwent a most 



thorough and careful consideration in the courts of 

 New Jersey and New York, in a number of cases grow- 

 ing out of the great fire in the city of New York in the 

 winter of 1835. Hale vs. Lawrence, 3d Zabriskie, pp. 

 728-9. Russell vs. the Mayor, &c., 2d Dennio, pp. 486. 

 7; 12, Co. 12; Id. 63. 



Upon the authority of the cases cited, and others 

 that might be adduced, as well as on the principles 

 which distinguish a case of public necessity, utility, or 

 good, from the overruling necessity which regulates 

 the law of individuals, we are of opinion that the right- 

 ful taking of private property, for use or destruction, 

 when the public exigency demands it, by a military 

 officer commanding any part of the public force, is an 

 exercise of the right of eminent domain ; and that such 

 a case is not governed by the law applicable to indi- 

 viduals. The fundamental law provides that " private 

 property shall not be taken for public use without just 

 compensation." Is this provision of the Constitution 

 answered when compensation is made for property 

 taken under legislative authority, and denied when 

 taken by military officers acting rightfully, under the 

 proper functions of their office? We think not. The 

 obligation to make compensation is coextensive with 

 the right of the State to take private property for pub- 

 lic use ; and whenever it is taken by competent author- 

 ity, the obligation of the State cannot be evaded. 



We next come to consider of the necessity under 

 which this property was destroyed. It is necessity 

 alone that gives the right to take private property for 

 use or destruction. The danger must be threatening 

 such as demands immediate action, and when delay 

 would work public injury. Unless the necessity 13 

 such as to justify the officer, he is a trespasser, "and 

 there is no liability on the part of the Government. It 

 is impossible to lay down with precision the degree of 

 necessity or imminence of the danger that will furnish 

 such justification. Each case must stand on its own 

 facts. The necessity must be urgent, but it need not 

 be overwhelming the danger must apparently be 

 near and impending, but it need not be actually pres- 

 ent, threatening instant injury to the public interests. 

 The officer must decide when the necessity has arisen 

 that demands him to take private property for the 

 public safety or good. If, however, the danger, as he 

 ought to have seen, was remote, the necessity not 

 pressing, courts will hold him personally responsible 

 to the party aggrieved. In deciding upon the conduct 

 of the officer we must look at all the circumstances of 

 danger by which he was surrounded, and to such in- 

 formation as he had, entitled to credit. It may be that 

 there was no real danger, that his information was 

 false, and that he acted under a supposed state of facts 

 that did not exist. This would not affect his conduct, 

 so as to charge him personally, or relieve the State 

 from responsibility. Had he good grounds for the be- 

 lief that the facts were as they appeared to him? 

 Would a cool, prudent, discreet man have felt the 

 necessity as urgent and the danger impending ? If so, 

 the officer is justified, and the party who has suffered 

 loss must look to the Government alone for redress. 



We hold in this case that the property was destroyed 

 by the rightful order of the commanding officer, and 

 upon an urgent and pressing necessity, and to prevent 

 it from falling into the hands of the public enemy, and 

 those hostile to the United States; that it was a taking 

 for public use ; and that the Government is bound un- 

 der the Constitution to make just compensation to the 

 owner. The legal duty to make compensation raises 

 an implied promise to do so, and here is found the ju- 

 risdiction of this court to entertain this proceeding. 



It is one of the strange phenomena of the 

 times that, amid all the rejoicings which suc- 

 ceeded the victory at Gettysburg, no ono seem- 

 ed to reflect that the event which had insured 

 the safety of the Government and country had 

 rendered a large body of people almost desti- 

 tute. There were not even wanting writers 

 who sought to give piquancy to their letters 



