Virginia advocate. [volume] (Charlottesville, Va.) 1827-1860, 1828-03-29
Tor the Virginia Advocate.
NO. III.


For the Virgmia Advocate
NO III.
"Nor ShoN pirate property be taken far puL-
nc use, 'ottho"t Just compensaiion." Const u. S
Amendment
Ia my last number, applying the principles es-
tapiished IN the first, it has been shewn that l
authority to take private property independently
Oh the consent OF the proprietor, (under the con-
ditlon of making just compensation for t) is vest
ca In some one or other oil our federal agents as
an incident 10 tie oDfce Of procidIng for the dc.
JeHce " the country. In every nation, this au-
thorty unless otherwise specially delegated, must
De regarded as an accessory TO the war-makng of
hce I'm these states, who have united to commit
tins office to one and the same federal tlnctona-
fy; 1t must be considered trust incidentally
reposed in that functionary. . Even admitting
TINS authority not to be fair incident to any OF
the federal functions: still the law itself which has
given rise to the question: abundantly suilces to
make manifest that the exercise of this power was
contcmpIatcd; and contemplated WiM approba
ton.
we come now 10 the questions that may arise
concerning the exercise ofthis authority.
In the inst place, the acts contemplated in this
provision are two in number, and totally distinct:
inc act OF taking private property and that of ma
KING Just compensation. Who are the iunc tiona-
RES clothed with this authority, and charged with
tins duty! For neither, do we find an officer cx
pressly created or designated. in the constitution
But, the authority, being an incident to the war
making office; is, of course lodged with the war
making tunctonary: and this is CONGRESS. 1t
follows then that, the charge of providing i'm
mediate agents and means for carrying on the
wars IN which this coniederacy may be engaged
IS confdcd to Congress, so Is that of providing i'm
mediate agents for the exercise of this authority
As their honesty and wisdom (under the check OF
nj tp ~ InI
on for such selection and regulation of the for
mer agents as shall tend to the general welfare !;
so nave we the same securities that the latter shall
be SO selected and governed as TO secure each OF
us from all unnecessary interference in those in
divdual rights vested in him by the general regu-
latlons OF the community (which he is mem
Der. As Congress are, in one capacity, the de-
postaly of the authority they, in another,
charged with the duty. As the fiscal agent of the
Union, on them devolves the charge of seeing to
the indemnfcation of those whose property may
be taken for the public use.
Evc.y instance of the exercise Of this charge,
involves two distinct operations. !. That at
aSceytaining the taking Of property. 9. That
of d,nioiasg money from the Treasury, TO pau for
1t. The latter, the Constitution requires to be
performed by their own hands; but the former,
they are at liberty to confde to other hands than
their own and it is question that seems to ad-
NIT at least of same discussion, whether the ma
ton would not he gamer, in more respects than
one, were this Office discharged by a special, per-
manent Court; rather than an ephemerous COM
mittee of Congress.
BE this as it may however it is very obvious
that in every instance The execution of this pro-
vision OF the Constitution presupposes I. Some
object taken for public use 3 some individual
whose "private property" the object taken is.
That certain thing has been taken tor the public
| use and that thing the private property Of a
|
ways be established to the satisfaction of SOME
iunctlonary other, before an act of indcmnifca-
ton can be determined on.
OF the latter fact, the nature is such as always
to give rise to two distinct questions /. Adj
hitting certain object to have been taken-is
that oyect, one Of those embraced unde1' tie rom
| StitatiOndl deSigRation prirate prOpcrty?" O.
Admitting 1t to be se-Sas 1T the prOperfy of the
indiUiduat contemplated? (a)
These questions being inherent liz the subject
and nseparabe from every claim for compensa-
ton at the hands of the federal government for
things taken by them it becomes interesting that
general principles should he established for their
determination. As to the first the only logical way
of proceeding i'll it, concerning any individual
case; is by course that would at once accomplish
for every other case that possibly arise, the
most difficult part of the operation. This course
is, to ascertain in the abstract. without reference
to- any particular whatever the precise mean
ing Of "prva;e property" Here's a generic term
used by the parties 10 the Constitution What
is the characteristic of the several objects con-
tempatcd by theml TO answer anyone question
Of the sort, this must be ascertained with clear
ness and precision and being ascertained for one
it will be for ALL The only enquiry, in any pos
sbe future case, would be--is the object that has
/ been taken, possessed Of this characteristic II
it be then it is one of the objects intended and
compensation must be made. If it be nat: ther
it is not one ofthe objects intended and compen
saton is not due.
| 1t IS then, as manifest truth as may well be
that, in relation to no object in creation, car
the question whether that object be private prop
crty. be determined; without, in the course Of the
| identical process whereby this shall be accom-
plishcd, settling point which reduces all futur,
operations in relation to similar questions to the
simple one Of Gsccrtoining the presence or alb