cuſtoms, but by the judgment of his peers, or by the law of the land. And by a variety of antient ſtatutes[1] it is enacted, that no man’s lands or goods ſhall be ſeiſed into the king’s hands, againſt the great charter, and the law of the land; and that no man ſhall be diſinherited, nor put out of his franchiſes or freehold, unleſs he be duly brought to anſwer, and be forejudged by courſe of law; and if any thing be done to the contrary, it ſhall be redreſſed, and holden for none.
So great moreover is the regard of the law for private property, that it will not authorize the leaſt violation of it; no, not even for the general good of the whole community. If a new road, for inſtance, were to be made through the grounds of a private perſon, it might perhaps be extenſively beneficial to the public; but the law permits no man, or ſet of men, to do this without conſent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Beſides, the public good is in nothing more eſſentially intereſted, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and ſimilar caſes the legiſlature alone can, and indeed frequently does, interpoſe, and compel the individual to acquieſce. But how does it interpoſe and compel? Not by abſolutely ſtripping the ſubject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby ſuſtained. The public is now conſidered as an individual, treating with an individual for an exchange. All that the legiſlature does is to oblige the owner to alienate his poſſeſſions for a reaſonable price; and even this is an exertion of power, which the legiſlature indulges with caution, and which nothing but the legiſlature can perform.
- ↑ 5 Edw. III. c. 9. 25 Edw. III. ſt. 5. c. 4. 28 Edw. III. c. 3.
