U.S. Supreme Court Charles River Bridge v. Warren Bridge, 36 U.S. 11 Pet. 420 420
(1837) Proprietors of Charles River Bridge v. Proprietors of Warren Bridge 36 U.S. (11 Pet.) 420 ERROR TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS [Syllabus from pages 420-423 intentionally omitted]

															IN error to the Supreme Judicial Court of Massachusetts. The
plaintiffs in error were a corporation created by an act of the
legislature of the state of Massachusetts, passed on the 9th of
March 1785, entitled 'an act for incorporating certain persons for
the purpose of building a bridge over Charles river, between Boston
and Charlestown, and supporting the same, during forty years.' The
preamble of the act stated, 'whereas, the erecting a bridge over
Charles river, in the place where the ferry between Boston and
Charlestown is now kept, will be of great public utility, and
Thomas Russell, Esq., and others, have petitioned this court for an
act of incorporation, to empower them to build the same bridge,'
&c. The act authorizes taking certain tolls, prescribed the
size of the bridge, and fixed certain regulations by which it would
not be permitted to impede the navigation of Charles river; and
enjoined certain things to be done, by which the bridge should be
kept in good order, and fitted for constant and convenient use. The
fifth section of the act provided, 'that after the said toll shall
commence, the said proprietors or corporation, shall annually pay
to Harvard College or Univeristy, the sum of two hundred pounds,
during the said term of forty years; and at the end of the said
term, the said bridge shall revert to, and be the property of, the
commonwealth; saving to the said college or university, a
reasonable and annual compensation for the annual income of the
ferry; which they might have received, had not said bridge been
erected.'

															The bridge was erected under the authority of this act; and
afterwards, on the 9th of March 1792, in an act which authorized
the making a bridge from the western part of Boston to Cambridge,
after reciting that the erecting of Charles River bridge was a work
of hazard and public utility, and another bridge in the place
proposed for the West Boston bridge, might diminish the emoluments
of Charles River bridge; therefore, for the encouragement of
enterprise, the eighth section of the act declared, 'that the
proprietors of the Charles River bridge shall continue to be a
corporation and body politic, for and during the term of seventy
years, to be computed from the day the bridge was first opened for
passengers.'

															The record contained exhibits, relating to the establishment of
the ferry from Charlestown to Boston, at the place where the bridge
was erected; and also the proceedings of the general courts of
Massachusetts, by which the ferry there became the property of
Harvard College. Some of these proceedings, verbatim , were
as follows:

															'A Court of Assistance, holden at Boston, Nov. 9th, 1830.
Present, the Gov'nr, Dep'y Gov'r, Sir Richard Saltonatall, Mr.
Ludlow, Capt. Endicott, Mr. Coddington, Mr. Pinchon, Mr.
Bradstreet. It is further ordered, that whosoever shall first give
in his name to Mr. Gov'nr, that hee will undertake to sett upp a
ferry betwixt Boston and Charlton, and shall begin the same, at
such tyme as Mr. Gov'r shall appoynt: shall have 1d. for every
person, and 1d. for every one hundred weight of goods hee shall so
transport.' 'A court holden at Boston, November 5th, 1633. Present,
the Governor, Mr. Ludlow, Mr. Nowell, Mr. Treasu'r, Mr. Coddington,
S. Bradstreet. Mr. Rich. Brown is allowed by the court to keepe a
fferry over Charles ryver, against his house, and is to have 2d.
for every single person hee soe transports, and 1d. a piece, if
there be two or more.'

															'Att the Gen'all Court, holden at Newe Towne, May 6th, 1635.
Present, the Gov'nr, Deputy Gov'nr, Mr. Winthrop, sen'r, Mr.
Haynes, Mr. Humphrey, Mr. Endicott, Mr. Treasu'r, Mr. Pinchon, Mr.
Nowell, Mr. Bradstreete and the deputies: It is ordered, that there
shall be a fferry sett upp on Boston syde, by the Wynd myll hill,
to transport men to Charlton and Wenesemet, upon the same rates
that the fferry-men att Charlton and Wenesemet transport men to
Boston.'

															'A Generall Courte, held at Newtowne, the 2d day of the 9th mo.
1637. (Adjourned until the 15th, present.) Present, the Governor,
Deputy Gov'nr, Mr. John Endicott, Mr. Humfrey, Mr. Bellingham, Mr.
Herlakenden, Mr. Stoughton, Mr. Bradstreete and Increase Nowell:
The fferry betweene Boston and Charlestowne, is referred to the
Governor and Treasurer, to let at 40 l. pr. A., beginning the
1st of the 10th mo., and from thence for three years.'

															'At a General Court of elections, held at Boston, the 13th of
the 3d mo., A. 1640. Present, the Governor, &c. Mr. Treasurer,
Mr. Samuel Sheapard and Leift. Sprague, have power to lett the
ferry between Boston and Charlestown, to whom they see cause, when
the time of Edward Converse is expired, at their discretion.

															'At a session beginning the 30th of the 8th mo. 1644. It is
ordered, that the magistrates and deputies of ye co'rte, their
passage over the fferries, together with their necessary
attendants, shall be free, not paying any thing for it, except at
such ferries as are appropriated to any, or are rented out, and are
out of the countries' hands, and there it is ordered that their
passages shall be paid by ye country.'

															Further extract from the colony records, filed by the plfs.

															'At a General Court, &c. 7th day 8th mo. The ferry betweene
Boston and Charlestown is granted to the Colledge.'

															'At a Generall Courte of elections, begunne the 6th of May 1646.
In answer to the petition of James Heyden, with his partners,
ferrymen of Charlestown, and of the satisfaction of all other
ferry-men, that there may be no mistake who are freed, or should be
passage free, and how long: It is hereby declared, that our honored
magistrates, and such as are, or from time to time, shall be chosen
to serve as deputyes at the Generall Court, with both their
necessary attendants, shall be passage free over all ferryes; and
by necessary attendants, wee meane a man and a horse, at all times
during the term of their being magistrates or deputyes, but never
intended all the familyes of either at any time, and that ye order
neither expresseth nor intendeth any such thing.

															'Att a third session of the Generall Courte of elections, held
at Boston, the 15th of October 1650. In answer to the petition of
Henry Dunster, president of Harvard Colledge, respecting the
hundred pounds due from the country to the college, and rectifying
the fferry rent, which belongs to the college: It is ordered, that
the treasurer shall pay the president of the college the some of
one hundred pounds, with two years forbearance, as is desired; and
forbearance till it be paid out of this next levy, that so the ends
proposed may be accomplisht; and for the ferry of Charles Towne,
when the lease is expired, it shall be in the liberty and power of
the president, in behalfe and for the behoofe of the College, to
dispose of the said ferry, by lease, or otherwise, making the best
and most advantage thereof, to his own content, so as such he
disposeth it unto performe the service and keep sufficient boates
for the use thereof, as the order of the court requires.'

															The case of the plaintiffs in error is thus stated in the
opinion of the court: It appears from the record, that in the year
1650, the legislature of Massachusetts granted to the president of
Harvard College 'the liberty and power' to dispose of the ferry
from Charlestown to Boston, by lease or otherwise, in the behalf,
and for the behoof of the college; and that under that grant, the
college continued to hold and keep the ferry, by its lessees or
agents, and to receive the profits of it, until 1758. In that year,
a petition was presented to the legislature, by Thomas Russell and
others, stating the inconvenience of the transportation by ferries
over Charles river, and the public advantage that would result from
a bridge; and praying to be incorporated for the purpose of
erecting a bridge in the place where the ferry between Boston and
Charlestown was then kept. Pursuant to the petition, the
legislature, on the 9th of March 1785, passed an act incorporating
a company by the name of 'The Proprietors of the Charles River
Bridge,' for the purposes mentioned in the petition. Under this
charter, the company were authorized to erect a bridge 'in the
place where the ferry is now kept;' certain tolls were granted, and
the charter was limited to forty years from the first opening of
the bridge for passengers; and from the time the toll commenced,
until the expiration of the term, the company were to pay two
hundred pounds, annually, to Harvard College; and at the expiration
of the forty years, the bridge was to be the property of the
commonwealth; 'saving, as the law expresses it, to the said college
or university, a reasonable annual compensation for the annual
income of the ferry, which they might have received, had not the
said bridge been erected.' The bridge was accordingly built, and
was opened for passengers, on the 17th June 1786. In 1792, the
charter was extended to seventy years from the opening of the
bridge, and at the expiration of that time, it was to belong to the
commonwealth. The corporation have regularly paid to the college
the annual sum of two hundred pounds; and have performed all the
duties imposed on them by the terms of their charter.

															In 1828, the legislature of Massachusetts incorporated a company
by the name of 'The proprietors of the Warren Bridge,' for the
purpose of erecting another bridge over the Charles river. The
bridge is only sixteen rods, at its commencement, on the
Charlestown side, from the commencement of the bridge of the
plaintiffs, and they are about fifty rods apart, at their
termination on the Boston side. The travellers who pass over either
bridge, proceed from Charlestown square, which receives the travel
of many great public roads, leading from the country; and the
passengers and travellers who go to and from Boston, used to pass
over the Charles river bridge, from and through this square, before
the erection of the Warren bridge.

															The Warren bridge, by the terms of the charter, was to be
surrendered to the state, as soon as the expenses of the
proprietors in building and supporting it should be reimbursed; but
this period was not, in any event, to exceed six years from the
time the company commenced receiving toll. When the original bill
in this case was filed, the Warren bridge had not been built; and
the bill was filed, after the passage of the law, in order to
obtain an injunction to prevent its erection, and for general
relief.

															The bill, among other things, charged, as a ground for relief,
that the act for the erection of the Warren bridge impaired the
obligation of the contract between the state of Massachusetts and
the proprietors of the Charles river bridge; and was, therefore,
repugnant to the constitution of the United States. Afterwards, a
supplemental bill was filed, stating that the bridge had been so
far completed, that it had been opened for travel; and that divers
persons had passed over, and thus avoided the payment of the toll,
which would otherwise have been received by the plaintiffs. The
answer to the supplemental bill admitted that the bridge had been
so far completed, that foot passengers could pass, but denied that
any persons but the workmen and superintendents had passed over,
with their consent.

															In this state of the pleadings, the cause came on for a hearing
in the supreme judicial court for the county of Suffolk, in the
commonwealth of Massachusetts, at November term 1829, and the court
decided, that the act incorporating the Warren bridge, did not
impair the obligation of the contract with proprietors of the
Charles River bridge; and dismissed the complainant's bill. The
complainants prosecuted this writ of error.

															The case was argued by Dutton and Webster , for the
plaintiffs in error; and by Greenleaf and Davis , for
the defendants. Dutton , for the plaintiffs.-This case comes before the
court upon the bill and answer, amended bill and answer, exhibits,
evidence, &c., contained in the record. The plaintiffs, in
their several bills, after setting forth the grants made to them by
the acts of 1785 and 1792, and their compliance with the terms and
conditions of them, complain, that the defendants are about to
construct, and have constructed, a bridge between Charlestown and
Boston, so near to the plaintiffs' bridge as to be, in
contemplation of law, a nuisance to it; and they, therefore, pray
that the defendants may be enjoined, &c. The defendants
justify, under the authority of an act passed on the 12th of March
1828, establishing the Warren bridge corporation. The plaintiffs
allege, that this act of the legislature, under which the
defendants justify themselves, impairs the obligation of a
contract, and is, therefore, unconstitutional and void. The
defendants, in their answer, deny this; and the issue raised by
these pleadings, and the only one of which this court has
jurisdiction, is, whether the said act of March 12th, 1828, does,
or does not, impair the obligation of a contract.

															Such being the state of the pleadings, and such the only issue
which this court can try, I shall endeavor to maintain this single
proposition, viz: The act of the legislature of Massachusetts,
passed on the 12th of March 1828, establishing the Warren bridge
corporation, is repugnant to the 10th section of the 1st article of
the constitution of the United States, which prohibits a state from
passing any law impairing the obligation of contracts. In the
discussion of this proposition, many topics will come under
examination; all, however, connected with it, and all resulting in
the affirmance or denial of it.

															By the preamble to the plaintiff's charter, which was passed on
the 9th of March 1785, incorporating the plaintiffs, it appears,
that the bridge is to be erected 'in the place where the ferry
between Boston and Charlestown is now kept;' and by the 5th section
of the act, it is provided, that 'after the said toll shall
commence, the said proprietors or corporation, shall annually pay
to Harvard College or university, the sum of 200 l. , during
the said term of forty years.' The plaintiffs' charter, therefore,
upon its face, shows that certain transactions took place between
the legislature, the college and the grantees. The ferry that
belonged to the college is to be extinguished, and a bridge is to
be erected in its place; an obligation is imposed upon the grantees
to pay to the college the sum of 200 l. annually; and there
is a recognition of a right in the college to compensation for the
loss of the ferry, after the plaintiffs' charter has expired.

															All this leads to an examination of the ferry, and its legal
history, as it appears by various colonial ordinances; together
with the nature and extent of such a franchise, at common law. On
the 9th November 1630, the colonial government make an offer of a
ferry to any one who will undertake to set it up, between Boston
and Charlestown, and fix the rates of ferriage, &c. On the 5th
of November 1633, Richard Brown in allowed to keep a ferry over
Charles river, against his house, and the rates are there stated.
It does not appear, where this ferry was, nor whether it was ever
set up. On the second day of the 9th month, 1637, this ordinance
was passed. 'The ferry between Boston and Charlestown is referred
to the governor and treasurer to let, at 40 l. per annum, for
three years.' On the 13th of the 3d month, 1640, it is referred to
Samuel Shephard and others, to let the ferry between Boston and
Charlestown, when the time of Edward Converse is expired, &c.
On the 7th of the 8th month, the ferry was granted to the college
in these words: 'The ferry between Boston and Charlestown is
granted to the college.' By this ordinance, which, with others,
relating to ferries, will be found in the 58th and 57th pages of
the record; it appears, that the lease to Converse was about to
expire, and that there was, at that time, no other ferry in
existence between Boston and Charlestown.

															At a session of the court, held on the 30th of the 8th month,
1644, it is provided, that magistrates, with their necessary
attendants, shall have free passage over all ferries that have not
been granted or leased to any; and their passage shall be paid by
the country. On the 6th of May 1646, an ordinance was passed,
explaining the foregoing ordinance, and declaring what is intended
by necessary attendants, for the satisfaction of the ferrymen; and
making magistrates passage free, over all ferries. This ordinance
exempts magistrates at all ferries, contrary to the act of 1644;
and is the only one, during a period of 45 years, which, in the
smallest degree, affects the income of the ferry. Whether the
amount to be charged to the country was found to be too trifling to
keep an account of, or whether the exemption at all ferries was
claimed by the magistrates, after royal example, and as being the
representatives of the royal authority, does not appear.

															It appears by the ancient charters, that the college was
incorporated in May 1650. Various acts were passed, confirming the
original grant to the college, both before and after the act of
incorporation. By the ordinance of 1642 (Ancient Charters, p. 77),
the 'revenue of the ferry between Boston and Charlestown,' was
given to the college. In the act passed on the 15th October 1650,
it is provided, that for the ferry to Charlestown, when the lease
is expired, it shall be in the liberty and power of the president,
in the behalf and for the behoof of the college, to dispose of the
said ferry, by lease or otherwise, making the best and most
advantage thereof, to his own content, &c. The act passed on
the 18th October 1654, speaks of the 'ferry formerly granted to the
college;' and the act of 27th June 1710, speaks of the 'profits and
revenues of the said ferry being granted to Harvard College, in
Cambridge.' Thus it appears, that the original grant of this ferry,
in 1640, was confirmed in 1642, in 1650, in 1654 and in 1710.

															Various acts regulating ferries were passed by the colonial
government, and several regulating the ferry between Boston and
Charlestown. They relate to the duties of the ferrymen, the
convenience of the ferry ways, the number of boats, &c. The act
passed in 1781, provides, that whenever the corporation of Harvard
College shall make any alteration in the rates of ferriage, they
shall publish the rates by them established. In 1713, there was a
project for building a bridge, where the ferry was kept, and a
committee was appointed by the corporation of the college, to
'insist on the right which the college hath in and to the profits
of the said ferry;' and the government, at the same time, appointed
Dr. Clark, to confer with the president and fellows upon the affair
of a bridge in place of the ferry. Thus, then, it appears, that the
college held this ferry for 145 years, with all the common-law
rights of ferries; subject only to such regulations as the colonial
and state governments saw fit, from time to time, to make. First,
the ferry itself was granted; afterwards, its profits, revenues,
&c. If one grants the profits of his land, the land itself
passeth. Comyn, tit. Grant, E. 5.

															In order to understand the nature and extent of this franchise,
resort must be had to the common law; and this has been uniform,
from the time of Henry VI. to the present time. It is also the law
of this country, except in cases where it can be shown that it has
been overruled by adjudged cases, or modified by state. In the
Termes de la Ley 338, a ferry is called a liberty, by prescription,
or the king's grant, to have a boat for a passage upon a great
stream, for carrying of horses and men for reasonable toll. It is
called an incorporeal hereditament, and is either founded in grant,
or prescription, which supposes a grant. In the one case, the
extent of the franchise is ascertained by usage; in the other, by
the terms of the grant. 2 Dane's Abr. 683; Stark v. McGowan , 1 Nott & McCord 387. It may belong to the
government, to a corporation, or to an individual; the property may
be private, though the use is public. In 10 Petersd. 53, it is
said, that these franchises, which are various, may be 'vested
either in the natural person, or bodies politic; in one man, or in
many; but the same identical franchise that has been granted to
one, cannot be bestowed on another, for that would prejudice the
former grant.' Also, 13 Vin. Abr. 513.

															In a note to the case of Blisset v. Hart , Willes
512, it is said: 'A ferry is publici juris; it is a
franchise, that no one can erect without the king's license; and
when one is erected, another cannot be erected without an ad
quod damnum . If a second is erected, without license, the crown
has a remedy by quo warranto; and the former grantee, by
action.' If the ferry be not well repaired, it is popular, and in
the nature of a highway, &c. It is to be reformed by
presentment or information. This differs from the case of mills,
bake-houses, &c., which are grounded on customs, and of a
private nature. Hardr. 163.

															Every owner of a ferry must have a right to land, to take in his
passengers. He need not own the soil, but he must have a right to
use it. 12 East 330; 6 Barn. & Cres. 703. The general doctrine
is laid down in 22 Hen. VI. 15-16. 'If I have a ferry by
prescription, and another is erected so near as to impair my ferry,
it is a nuisance to me; for I am bound to sustain and repair the
ferry for the use of the king's lieges; otherwise, I may be
grievously amerced.' In Roll. Abr. 140, Nuisance G, line 20, the
same doctrine is stated with reference to a fair or market. Hale,
in a note to Fitzherbert's Nat. Brev. 428, says: 'If the market be
on the same day, it shall be intended a nuisance; but if it be on a
different day, it shall not be so intended; and therefore, it shall
be put in issue, whether it be so or not.' Citing, 11 Hen. IV. 5-6.
If a ferry be erected with license, another cannot erect a ferry to
the nuisance of it. Com. Dig. tit. Piscary, B. He states the same
doctrine in another place: 'tit. Action on the Case for Nuisance,
A.' 'So, if one erect a ferry so near my ancient ferry.' 3 Bl. Com.
3, 219; 1 Nott & McCord 387.

															It is the usual practice, in England, to issue the writ of ad
quod damnum , before the patent for a fair or market is granted.
But as the execution of this judicial process does not, and cannot,
always ascertain what will be the effect of the proposed market or
fair; the doctrine seems to be well settled, that in case it does
prove to be injurious to any existing market or fair, the patent
may be repealed, upon proof of the fact. In other words, the writ
of ad quod damnum , executed, is not conclusive. 6 Mod. 229;
2 Vent. 344; 3 Lev. 220; Hale, de Port. Maris, Hargrave's Tracts
59; Com. Dig. Patent, F. 4-7; 1 Wms. Saund. note 4, p. 72; 2 Inst.
406. It is thus stated by Chitty, in his Prerogatives of the Crown,
ch. 10, § 2: it is most important to remember, that the king does
not grant a market or fair, without a writ of ad quod damnum being first executed; even if that be done, the crown cannot enable
a subject to erect a market or fair so near to that of another
person, as to affect his interest therein, &c.

															The owners of ferries are under liabilities and obligations,
which may be enforced against them by individuals, or the public.
Their franchises are declared to be publici juris; and the
law gives a remedy in all cases of negligence or injury, by
presentment, information or action on the case. Payne v. Partridge , 2 Salk. 718; Willes 512; 3 Salk. 198. They have
also rights which can be maintained at law, by action on the case
for a disturbance; by action of assize; by distress; &c. 2 Wms.
Saund. 114; 4 T. R. 666; 2 Dane's Abr. 683; Bac. Abr. tit.
Distress, F. pl. 6; Cro. Eliz. 710; 6 T. R. 616; Huzzey v. Field , 2 Cr. M. & R. 432.

															All these franchises, as of fairs, markets, ferries and bridges,
are founded on good and sufficient consideration; such as the
expenditure of money in establishing and maintaining them, for the
convenience and safety of the public. They are all publici
juris , and from the rights, liabilities and duties of which
they are compounded, results the notion of property in them. The
toll, or right to demand and receive money for the use and
enjoyment of these franchises, of which the toll is part and
parcel, is recognised as property, and protected as property, both
by the law of England, and of this country. A grant of these vests
in the grantee a beneficial interest, which may be demised, leased
or mortgaged. Poph. 79; Moore 474; Webb's Case , 8 Co. 92;
Gunning on Tolls 106, 110; 6 Barn. & Cres. 703; 5 Ibid. 875; 3
Maule & Selw. 247; 1 Crompt. & Jerv. 57; in the Exchequer,
p. 400. The franchise of a bridge or turnpike may be taken on
execution in payment of debt, by the law of Massachusetts. In Chadwick's Case , an action was brought at common law, and
sustained by the court, for compensation for the loss of his ferry,
by the erection of a bridge. 2 Dane's Abr. 686; also Judge Putnam's
opinion, 7 Pick.

															As to the local extent of this franchise of a ferry, an attempt
has been made to limit it to the ferry-ways; and the case of Ipswich v. Brown , Sav. 11, 14, is cited; where it is
said, that a 'ferry is in respect of the landing-place, and not in
respect of the water, that the water may be in one, and the ferry
in another;' it is also said in this case, that the owner of the
ferry must own the soil on both sides. This last part of the case
is expressly overruled in 6 Barn. & Cres. 703. And as to the
other part of the case, it means nothing more than this, that a
ferry must have ferry-ways or landing places. The case in Hardr.
162, was this; one owning land on both sides of the Thames, set up
a ferry, three quarters of a mile from an ancient ferry, at
Brentford. A bill was brought in the exchequer to suppress it, as
coming too near a monopoly. The reporter adds, sed quaere de
ceo; for contrary, to the books of 22 Henry VI., and to
precedents in like cases in this court. Afterwards, another bill
being filed for the same matter, the court, on the 7th of April,
Lord HALE presiding in it, decreed, that the new ferry should be
suppressed, and that the defendants should not have liberty to use
any ferry-boat to the annoyance of the plaintiff's ancient ferry. 2
Anstr. 608.

															In the case of the Newburgh Turnpike Company v. Miller , 5 Johns. Ch. 101, the principle is clearly stated
and applied. The plaintiffs in this case, had erected a bridge, as
part of their road, across the Wallkill; the defendants erected
another free bridge, eighty yards distant; purchased a strip of
land adjoining the bridge, and had a road laid out by commissioners
as a public highway, for the purpose of avoiding the toll-gate of
the plaintiffs. KENT, Chancellor, said: The quo animo is not
an essential inquiry in the case; whatever may have been the
intention of the defendants, the new road and bridge do directly
and materially impair the use and value of the plaintiff's
franchise. No rival road, bridge, ferry, or other establishment of
a similar kind, and for like purposes, can be tolerated so near to
the other as materially to affect or take away its custom. It
operates as a fraud upon the grant, and goes to defeat it. The
consideration by which individuals are invited to expend money upon
great expensive and hazardous public works, such as roads, bridges;
and to become bound to keep them in constant and good repair, is
the grant of a right to an exclusive toll. This right, thus
purchased for a valuable consideration, cannot be taken away by
direct or indirect means. Also cited, Ogden v. Gibbons , 4 Johns. Ch. 150.

															It appears from the Ancient Charters of the colony of
Massachusetts, p. 110-11, that the same notions of an exclusive
right in ferries prevailed there, that have always prevailed in
England. For, as early as 1641, near the time when the 'ferry
between Boston and Charlestown was granted to the college,' this
ordinance was passed: 'It is ordered by this court, and the
authority thereof, that whosoever hath a ferry granted, shall have
the sole liberty of transporting passengers,' &c. Here is a
direct assertion of an exclusive right in the owners of a ferry;
and is worthy of notice as a contemporaneous exposition; and can it
be reasonably doubted, that Edward Converse, under his lease from
the government, of 'the ferry between Boston and Charlestown,' had
the sole and exclusive right of transporting passengers between
those termini? All, therefore, which the plaintiffs claim in the case at bar,
is an exclusive right between Boston and Charlestown; and if they
have any exclusive right, it must have some local extent beyond the
ferry-ways, or the planks of the bridge; otherwise, it would not be
exclusive. If any one, at his pleasure, could have lawfully carried
passengers from Boston to Charlestown, and landed them within two
feet of the ferry-ways of Converse, he would not have had the sole
right of carrying between those points. No other ferry or bridge
could be erected between those termini , without 'being near,
in a positive sense;' which is the form of expression in which
Chief Justice PARKER lays down the rule; without being so near, in
the language of Blackstone, as to draw away the custom of the elder
ferry or bridge; or without producing, in the language of
Chancellor KENT, ruinous competition. With this extent, therefore,
the college held the ferry on the 9th of March 1785, when the act
passed, making the plaintiffs a corporation for the purpose of
erecting a bridge in the place where the ferry was kept; and the
view we take of this transaction is this, that the corporation
created by this act became the assignees, in equity, of this
franchise, or it was surrendered to their use by operation of law.
2 Thomas' Co. Litt. 553; 6 Barn. & Cres. 703.

															A bridge, in place of the ferry over Charles river, is deemed by
the legislature to be a matter of public utility; and they are
disposed to grant a liberal charter to such persons as are willing
to undertake so hazardous an enterprise. The college are ready to
part with their ferry for an annuity, equal to their then income;
and Thomas Russell and his associates, are willing to make the
first experiment in this country, of throwing a bridge, 1500 feet
in length, over navigable waters, for the tolls to be granted to
them, for the period of forty years. The ancient ferry, then, is to
be extinguished; which could not be done without the authority of
the government, nor without the consent of the college. 3 Mod. 294.
The petitioners are to pay 200 l. annually, to the college,
for forty years, as a compensation for the loss of the ferry; and
to this agreement the college became a party, by its assent given
at the time, and its subsequent acceptance of the annuity. The
right to keep up a ferry at this place is extinguished, but the
beneficial interest of the college is not; for in the act, there is
a 'saving to the college of a reasonable and annual, compensation
for the annual income of the ferry.'

															It is said, that the government seized the franchise of the
ferry. If this were so, then it passed with the grant of a right to
build a bridge, 'in the place where the ferry was kept;' agreeable
to the doctrine in Palmer's Case , Poph. 78; 9 Co. 26; 10
Ibid. 64-5. But there is no evidence that the government did, or
intended to, seize the franchise, as private property, for public
use, in the exercise of the eminent domain. There was no necessity
or motive for doing this; because the petitioners for the bridge
had agreed to pay the college for the surrender of their ferry for
the forty years; and their act of incorporation confirmed and
executed that agreement. The whole transaction shows, that it was a
matter of previous arrangement between the three parties; and the
terms and conditions of the bargain were made obligatory of the
act.

															Now, it is obvious, that if the government had given the college
an authority to build a bridge, 'in the place where the ferry
kept;' it would have the same local extent of franchise that the
ferry had. Or, if the proprietors of Charles River bridge had first
purchased the ferry of the college, and afterwards had obtained a
charter to build a bridge, 'in the place where the ferry was kept;'
the result would have been the same. The beneficial interest vested
in the owners of the ferry and of the bridge, is the same, to wit,
a right to demand and receive a certain rate of toll from all
persons passing from one town to the other; the place the same; the
object the same; the mode only different.

															The power of regulating all these franchises, which are publici juris , is in the government. It is an incident of
sovereignty. In the case of ferries, it extends to the number and
place of the ferry-ways, the number and kind of boats, the times of
putting off from each side; reaching to all those details which
concern the convenience and safety of passage and transportation.
In the case of a bridge, this power of regulation in the government
is exerted, at the time the charter is granted. The place where the
bridge is to be built; its dimensions, materials, lights, draws and
other details, are prescribed and settled by the act: and the
government act upon the corporation, by holding them to a strict
performance of all the dutes imposed.

															The charter of 1785 and its extension in 1792: The first grant
was of a right to build a bridge over a navigable river. It was an
exercise of the sovereign power of the state over certain public
rights. By the severance of the empire, and the consequent
independence of the states, all public property and public rights
vested in the states, as successors to the crown and government of
the parent country. The power of Massachusetts, in the year 1785,
was, therefore, as ample and complete over these as it had ever
been before the separation. Such rights as these have always been
held in England by grant or prescription, exclusively as private
property; such as fisheries in arms of the sea; ferries and bridges
over navigable rivers or arms of the sea, subject only to such
regulations as public convenience required. In grants that abridge
public rights, it is generally held, that a consideration must be
shown. Hargrave's Law Tracts, ' De Jure Maris ,' 18-36; Angel
on Tide Waters 106-7. In Carter v. Murcot , 4 Burr.
2162, Lord MANSFIELD says, 'on rivers not navigable, the
proprietors of the adjoining land own ad filum medium aquae; not so in arms of the sea; but if he can show a right by grant, or
prescription, which supposes a grant, he may have an exclusive
right in an arm of the sea or navigable river.' In the following
cases the same doctrine is clearly laid down. 4 T. R. 439; 2 Bos.
& Pul. 472; 1 T. R. 669; 1 Mod. 105; 4 T. R. 668. Such is the
law of England.

															It is the law of Connecticut. In 1 Conn. 382, the court say,
'that the right of fishing, by the common law, in the ocean, in
arms of the sea, and in navigable rivers, below high-water mark, is
common to all; and the state only can grant exclusive right. The
public may grant an exclusive right of fishing in a navigable
river; and if it may be granted, it may be prescribed for.' It is
the law of New York. See People v. Platt , 17 Johns.
195. It is the law of Massachusetts. In 6 Mass., Chief Justice
PARSONS states the common-law doctrine, and the alterations it has
undergone since the first settlement of the country. Commonwealth v. Charlestown , 1 Pick. 180. With regard
to riparian owners of land upon streams, not navigable, the common
law has not been modified; they own, as in England, to the middle
of the stream. But with regard to the owners of land bounding on
the sea-shore, or arms of the sea; they own, by the law of
Massachusetts, to low-water mark, where the tide does not ebb more
than one hundred rods; though, by the common law, they could hold
only to high-water mark, for all below belonged to the king. Yet
they might hold by grant or prescription against the king. 1 Mass.
231; 17 Ibid. 289; 4 Ibid. 140; Angel on Tide Waters; 4 Mass. 522.
An act of the legislature of Massachusetts, touching public
property or public rights, has the same force and effect as an act
of parliament in England. There is, then, no restraint or
limitation upon the power of the grantor over the subject-matter of
this grant; none in the constitution of Massachusetts; none in the
act itself, that interferes with the possession of an exclusive
right by grantees.

															The rule of construction applicable to this charter: It was said
by a learned judge, in the court below, that the general rule of
law was, that in governmental grants, nothing passed by
implication. Where, I would ask, is any such general rule to be
found? Not in the books, surely; nor can it be inferred from
adjudged cases. All those cited in support of the rule are cases of
crown or prerogative grants; and these, as strongly intimated by
Chief Justice EYRE, 2 H. Bl. 500, stand on a different footing from
grants by acts of parliament. But with regard even to these crown
grants, where the royal prerogative is entitled to the most
indulgence, and where the grant is made at the suit of the grantee,
there are a variety of cases where valuable rights, privileges and
franchises pass by necessary implication. Bac. Abr. tit.
Prerogative, F. 2; Plowd. 366-7; Rex v. Twine , Cro.
Jac. 179; 9 Co. 30; Dyer 30; Sav. 132; 1 Vent. 409; Whistler's
Case , 10 Co. 64-5.

															The general rule is thus laid down by Chitty on Prerogative, ch.
16, § 3, p. 391. In ordinary cases, between subject and subject,
the principle is, that the grant shall be construed, if the meaning
be doubtful, most strongly against the grantor; who is presumed to
use the most cautious words for his own advantage and security: but
in the case of the king, whose grants chiefly flow from his royal
grace and bounty, the rule is otherwise; and crown grants have at
all times been construed most favorably for the king, where a fair
doubt exists as to the real meaning of the instrument. But there
are limitations and exceptions even to this rule: 1st. No strange
or extravagant construction is to be made in favor of the king; if
the intention be obvious, royal grants are to receive a fair and
liberal interpretation. 2d. The instruction and leaning shall be in
favor of the subject, if the grant show that it was not made at the
solicitation of the grantee; but ex speciali gratia, certa
scientia, et mero motu regis . 10 Co. 112; Com. Dig. Grant, C.
12. 3d. If the king's grants are upon a valuable consideration,
they shall be construed strictly for the patentee. The grants of
the king, when valid, in general, bind him, though without
consideration, as subjects are bound by their grants: ch. 16, §
5.

															There are cases, in which it is said, that when those things,
which are said to be parcel of the flowers of the crown, such as
the goods of felons, waifs, estrays, &c., come into the king's
possession, they are merged in the crown, and do not pass, without
express words; but even these will pass, if they can be made
certain by reference. The case of The Banne , which has been
cited, is explained by Justice BAYLEY in this way, in the case of
the Duke of Somerset v. Fogwell , 5 Barn. & Cres.
875. There is, then, no foundation in law for the supposed analogy
between crown grants in England, and grants by legislative acts in
this country. But if the act of 1785 were subjected to the
strictest rules applicable to crown grants, it would be entitled to
a liberal construction for the grantees; for it is upon a good, a
valid, an adequate, and a meritorious consideration. The state of
Massachusetts is as much bound by necessary implication in its
grants, as individuals are. This is decided in the case of Stoughton v. Baker , 4 Mass. 522.

															The true notion of prerogative in this country, is well stated
by PARSONS ( arguendo ), in 1 Mass. 356, as distinguished from
prerogative in England. In England, prerogative is the cause of one
against the whole; here, it is the cause of all against one. In the
first case, the feelings, the vices, as well as the virtues, are
enlisted against it; in the last, in favor of it: and therefore,
here it is more important that the judicial courts should take care
that the claim of prerogative should be more strictly watched.

															In the opinion of a learned judge in the court below, we are
told, that if the king makes a grant of lands, and the mines
therein contained, royal mines shall not pass: and why not?
Because, says the same authority, the king's grants shall not be
taken to a double intent; and the most obvious intent is, that they
should only pass the common mines, which are grantable to a common
person. That is, the grant shall not draw after it what can be
separated, and what is not grantable to a common person, but is a
special royalty, a crown inheritance: and yet this case, and others
like it, are cited in support of the pretended rule, that in
governmental grants, nothing passes implication.

															What is the consideration of the case, in the grant at bar? The
grantors themselves furnish the highest evidence of its merit. In
the act incorporating the proprietors of West Boston bridge, in the
year 1792, they say, 'Whereas, the erection of Charles River bridge
was a work of hazard and public utility, and another bridge in the
place proposed for the West Boston bridge, may diminish the
emoluments of Charles River bridge; therefore, for the
encouragement of enterprise,' &c. It was hazardous, for no
attempt at that time had been made to carry a bridge over
tide-waters; and so doubtful were the subscribers of its stability,
that a number of them insured their interest in it. The hazard was
all their own; and so great was it thought to be, that upon the
breaking up of the ice, persons assembled on the shore to see it
carried away. It has stood, however, against time and the elements;
it has stood against everything but legislation. It was opened with
processions, and every demonstration of a general rejoicing; and
was considered, at the time, as an enterprise of great patriotism,
as well as of utility.

															This charter is to receive a judicial construction, and the
words of grant are to be subjected to a judicial analysis. What
relations do the words raise? What rights are extinguished; what
required; and what covenants are implied? In the case of Fletcher v. Peck , 6 Cranch 37, the grant in that case
is said to be a contract executed; the rights of the grantor are
said to be for ever extinguished; and a contract implied, never to
re-assert his right; but none of these things appear upon the face
of the deed. It is said, there is a mode of writing with
sympathetic ink, which cannot be read till it is held up to the
light. So, words of grant, must be held to the light of judicial
interpretation. When the relations which the words give rise to,
are unfolded, the rights that are extinguished, and the rights that
are acquired, and the covenants that are implied, all become clear
and legible.

															In examining the charter of 1785, I shall consider: 1st. What is
granted by express words? 2d. What, by necessary implication?

															In the third section of the charter, are these words: 'And be it
further enacted by the authority aforesaid, that, for the purpose
of reimbursing the said proprietors the money expended, or to be
expended, in building and supporting the said bridge, a toll be and
hereby is granted and established, for the sole benefit of the said
proprietors.' Upon the authorities already cited, and upon the
strong reason of the case, these words vest, absolutely, in the
grantees, a franchise, without condition and without reservation;
and this franchise is property, recognised as such, and protected
as such, both by the the law of England and by the law of this
country. In order, then, to make this protection which the law
affords, available, it must be exclusive to some extent; enough, at
least, to keep down ruinous competition. All this is conferred upon
and vested in the proprietors of Charles River bridge, by these few
words of the charter.

															In 1 Crompt. & Jerv. 57, and 400, in the exchequer, it
appears, that a charter was granted to the Corporation of Stamford,
in 2 Ann., c. 13, with a right to take toll, without saying how
much. Chief Baron ALEXANDER says, 'We think that where a grant of
tolls is found in a charter, the word ought to have some meaning,
and the charter some operation; and that it can receive operation
only by being construed to mean a reasonable toll.' He goes on to
say, 'if we were to decide against this charter, upon the
principles contended for, we should shake the security of a vast
mass of property, which has been enjoyed, undisturbed, for perhaps
ages.'

															Again, it is declared expressly, that this toll shall continue
for and during the period of forty years. What is the meaning of
this limitation? The bridge is to remain, and be delivered to the
government, in good repair, at the end of the term. If the
corporation are merely tenants at will of this franchise; if the
legislature can eject them at pleasure; if they can rightfully
shorten the term, when they please, and as much as they please, the
limitation to forty years expressed in the charter, becomes absurd
and contradictory. It must, however, be construed to mean
something; and it can have no reasonable or consistent meaning, but
that of an absolute, unconditional grant of tolls for forty years.
Again, the maintenance of the bridge, and the annuity to the
college, run with the charter; and the grant of tolls is made, in
express words, for these two objects. Here, then, are two
obligations imposed by the charter; one to support the bridge,
which amounts, upon an average, to about $5000 a year; and the
other to pay to the college 200 l. a year; and a toll is
granted as the means, and the only means, of fulfilling these
obligations; and yet the legislature, the grantors of this charter,
claim and exercise the right of wholly withdrawing these means from
the corporation, by an indirect act, and leaving these obligations
upon them in their full force. Does not this, if anything can,
impair the obligation of a contract?

															Whence is derived the power or the right to do this? Is it to be
found in the charter? No! That grants a toll for forty years,
absolutely, without condition or reservation. What, then, is the
nature of this mysterious power of the government, that can
lawfully resume its own grants; destroy its own contracts;
disregard the obligations of good faith; and trample upon every
principle of equity and justice?

															In the case of Wales v. Stetson , 2 Mass. 146,
Chief Justice PARSONS says, 'We are also satisfied, that the rights
legally vested in this or in any corporation, cannot be controlled
or destroyed, by any subsequent statute; unless a power for that
purpose be reserved to the legislature, in the act of
incorporation.' This case, like the one at bar, was a grant of a
franchise; and here we have the solemn judgment of the supreme
court of Massachusetts, upon its inviolability, in the absence of
any such reserved power. In the case of the East India
Company v. Sandys , 7 State Trials 556, it appears, that
there was this condition inserted in the charter, 'that if it
should hereafter appear to his majesty, or his successors, that that grant, or the continuance thereof, in whole or in part,
should not be profitable to his majesty, his heirs and successors,
or to this realm, it should, after notice &c., be void.' Thus,
it appears, that even in the opinion of Lord Chief Justice
JEFFREYS, no feeble supporter of royal prerogative, a charter could
not be repealed or annulled, unless a power for that purpose was
reserved in it to the grantor.

															Thus far the case at bar stands upon the very words of the
grant; upon the legal and obvious construction of the act itself,
without resort to those necessary implications which arise from the
nature of the grant.

															2. What is granted by necessary implication? The general rule of
law is thus laid down in Co. Litt. 56 a , 'When the law doth
give anything to one, it giveth impliedly whatsoever is necessary
for the taking and enjoying the same.' Case of the Mines , 1
Plowd. 317. 'For the ore of gold and silver is the king's; and if
it is, the law gives him means to come to it, and that is by
digging; so that the power of digging is incidental to the thing
itself.' If one grant to another all the minerals in a certain
parcel of land; the grantee has a right to go upon the land, and
dig, and carry away the ores.

															In one thing, all things following shall be included: lessee of
land has a right of way on lessor's land; grantee of trees, growing
in a close, may come upon the land to cut them, &c. Finch 45,
Rule 100. The grant of a thing carries all things included, without
which the thing granted cannot be had. Hob. 234; also Saunders's
Case , 5 Co. 12; Lifford's Case , 11 Ibid. 52; and 1 Wms.
Saund. 322.

															Upon these authorities, the only question is, are tolls
necessary or essential to the enjoyment of this franchise? Just as
necessary and essential as air is to the support of animal life.
They are part and parcel of the franchise itself; its very essence,
substance and life. What is our franchise, without tolls? It is
compounded of certain rights and certain obligations. The rights
are, to be a corporation, with the usual powers incident to
corporations; such as the right to have a common seal; to sue and
be sued; to maintain a bridge over navigable waters; to demand toll
of all persons passing over the bridge, & c. The obligations
are, to maintain the bridge at an expense of $5000 a year; to pay
Harvard College 200 l. a year; and to deliver up the bridge
in good repair, at the end of forty years.

															The rights are without value, utterly barren and fruitless; the
obligations are oppressive and lasting as the charter. Yet a
learned judge, in the court below, says, 'that a trader or
innholder, has as good a right to be protected in the enjoyment of
the profits of his store or inn, as the plaintiffs have to be
protected in the enjoyment of their tolls.' Is a trader's shop or a
taverner's license a franchise?

															Since the first Wednesday of March last, the Warren bridge has
been free; and the necessary consequence has followed, viz., the
entire destruction of the plaintiffs' franchise. One thing more
remains to be done, and then the work will be finished. The
attorney-general will be directed to file a quo warranto against the corporation, for a non-compliance with some of its
public duties, and a decree of forfeiture of the franchise will be
obtained. This must inevitably happen, unless it can be presumed,
that this corporation will continue to maintain the bridge, at
their own private expense, for the public accommodation. The
government will then have got into their possession two bridges,
without the expenditure of a dollar: one having been paid for out
of the fruits of the franchise of Charles River bridge; and the
other obtained by a decree of forfeiture, for not complying with
its obligations. In the meantime, the proprietors of Charles River
bridge may well look upon the proceedings of the government with
amazement. But a few years since, and they held a property in this
franchise, which cost them $300,000; and where is it now? 'They are
charged with no fault, neglect of duty or breach of any condition;
no judicial process has ever been issued against them; and yet,
without a cent of compensation, they are stripped of this property
by the mere force of legislation. By what transcendental logic, can
such a result be justified, upon any principles of law, equity or
good faith?'

															Among the various pretences that have been put forth in
justification of the act complained of, is this, to wit, that the
charter is nothing more than a license to obstruct navigable
waters. In 15 Vin. Abr. 94, License, E, it is said, if a certain
time is limited, it is not revocable, though the thing is not done.
License executed is not countermandable. The same law is, if one
license me and my heirs to come and hunt in his park, it is
necessary for me to have this license in writing; for something
passes by the license, in perpetuity; but if the license be to me,
to hunt once in his park, this is good, without writing, for no
inheritance passes. 11 Hen. VII. p. 9. There is a great diversity
between a license in fact, which giveth an interest, and a license
in fact, which giveth only an authority or dispensation; for the
one is not to be countermanded, but the other is. A license is
revocable unless a certain time is fixed. Sir William Webb v. Paternoster , Poph. 151; Taylor v. Waters , 1
Taunt. 374; Liggins v. Inge , 5 Moore & Payne 712.
So it appears, that if a license is in writing to one and his
heirs, it is not revocable; 2d. If it passes an interest, it is not
revocable; and 3d. If it is for a time limited, it is not
revocable. The case at bar embraces all these: it is in writing; it
passes an interest; and is for a time limited. The grant to the
proprietors of the Charles River bridge, both by express words and
by necessary implication, vests in them absolutely, a franchise, a
beneficial interest, for forty years; and this interest consists of
a right to levy money, according to certain fixed rates, upon the
line and course of travel between Charestown and Boston.

															But it is said, that a line of travel is uncertain, and cannot
be defined; that it often changes, according to the exigencies of
society. And this, to some extent, is doubtless true; and it is
also true, that from the changes that are constantly taking place
in human affairs, a bridge or ferry may be subjected to incidental
injuries. It sometimes happens, that a consequential damage may be
suffered by one, arising out of the lawful use of property by
another. The grant of the West Boston bridge and of the canal
bridge, affected in some degree the income of Charles River bridge;
but these were between different termini , opening new
avenues into the country, and giving better accommodation to a
large amount of population. They were grants of similar franchises,
called for by public exigencies; and not directly and apparently,
intentionally interfering with former grants. The revival of
Winnisemmit ferry has somewhat diminished the travel through
Charlestown; but it is between Boston and Chelsea, and is coeval
with the ancient ferry between Boston and Charlestown. Whatever
damage, therefore, is suffered, arising from the changes or
progress of society; from political or commercial arrangements;
from the natural course of business or industry, is regarded, and
must be borne, as merely incidental. But the voluntary, direct and
fatal action of the government upon its own former grant, is not
incidental, and does not belong to cases of consequential
damage,

															The facts in the case at bar are peculiar, and distinguish it
from all other cases of a similar nature. The abutments of the two
bridges are 260 feet apart on the Charlestown side; and the avenues
to them meet in Charlestown square, at the distance of about 400
feet from the abutments. On the Boston side, the abutments of the
two bridges are about 900 feet apart, and the avenues to them meet
in Boston, at the distance of about 1400 feet. The distance from
Charlestown square to all the business parts of Boston, over these
bridges, is within a few feet the same; so that the same
accommodation is afforded by both bridges. Now, as all the roads
leading into and from Charlestown, terminate, or cross each other,
in this square, it follows, that all the travel which now goes over
the Warren bridge would, with equal convenience, have gone over
Charles River bridge, if that had been the only avenue between
Boston and Charlestown. The new bridge has connected no new line of
travel with the old; it has not shortened the distance between the
two termini , nor given any other additional accommodation,
than two parallel bridges give over one. Of the necessity of two
bridges, some judgment may be formed from this fact: about 3000
foot passengers passed over Charles River bridge in one day, and
about 750 vehicles of all descriptions, as appears by the record;
about 80,000 foot passengers, and 4000 vehicles go over London
bridge every day. The travel, therefore, from Charlestown to Boston
is a unit; it is now, and always has been, and always must be, the
same line of travel. The grant of the Warren bridge, therefore,
which, while it was a toll bridge, diverted two-thirds of this
travel from Charles River bridge, and since it has become free,
diverts the whole, is a grant of the same franchise. It is, in its
effect and operation, the entire destruction of property, held by
an older title; the resumption of a grant, which this court has
declared to be a contract executed; by which the rights of the
grantor are for ever extinguished, and a covenant implied on his
part never to re-assert his rights. But in the case at bar, the
grantor has re-asserted his right over this franchise; and has thus
impaired the obligation of his contract.

															A learned judge in the court below, in commenting upon the
extent of the franchise of the bridge, remarks, that it is either
confined to the planks, or in other words, has no local extent; or
else, extends to the old bridge in Cambridge, a distance of some
three or four miles. Now, it is a little remarkable, that the
proprietors of the Charles River bridge, do not now, and never have
claimed any such local extent; all they have ever claimed, or do
now claim, is an exclusive right between Charlestown and Boston.
Yet, in order to make the claim odious, it is represented as
extending over the whole river. But how does the learned judge get
at this conclusion, that the extent of this franchise is either
everything or nothing? Not, surely, from the declarations of the
proprietors, for they have uniformly limited their right in the
manner stated; nor from the books of common law, for in them, the
rule is stated with great uniformity and precision, and runs
through the whole current of authorities, from Hen. VI. to the
present time. The rule of the common law is, that if a rival
market, bridge or ferry, is erected so near an existing one as to
draw away its custom, essentially to impair its value, materially
to diminish its income or profits; near in a positive sense, so
near as to produce ruinous competition, &c., it shall be deemed
a nuisance.

															But it is asked, what and where are the boundaries of these
rights? And because they cannot put their finger on the precise
spot in the river, where private right ends and public right
begins, they have no right at all; because the common law does not,
unhappily, furnish a pair of compasses to measure the exact local
extent of this franchise, it has no extent at all; because it does
not cover the whole river, it is confined to the width of the
bridge. Does the law, or do learned judges, deal with nuisances on
land in this way? How near to a dwelling-house may one establish a
noisome or unwholesome manufactory? Does the common law measure the
distance, and say, here it shall be deemed a nuisance; and there is
shall not? And how is it to be determined, whether it be a nuisance
or not, but by the fact? It is a matter of evidence, and is to be
proved like any other fact. Is the atmosphere filled with a noxious
effluvia? Are the comfort and value of the dwelling impaired by
this establishment? Then it is a nuisance, whether it be at the
distance of ten rods or half a mile. So, in the case at bar, it is
the fact, rather than the distance, that is to determine whether a
rival bridge is a nuisance or not. Does it greatly impair the value
of the elder franchise? Does it essentially diminish its profits?
Does it wholly ruin it? These are all matters of evidence; facts to
be proved; and courts and juries, in the exercise of a sound
discretion upon all the facts and circumstances of each particular
case, will give a reasonable protection to the property in these
franchises, by giving them a reasonable extent.

															But it is argued, that when the charter of Charles River bridge
was extended for thirty years, in the year 1792, notice was given
to all the world, by a legislative act, that the proprietors had no
exclusive right; and that inasmuch as they took their extended
charter, with this notice, it is now too late to set up any such
right. The act incorporating the proprietors of the West Boston
bridge, was passed on the 9th of March 1792; and in the 8th section
of that act, it is enacted, that the proprietors of Charles River
bridge shall continue to be a corporation and body politic, for and
during the term of seventy years, to be computed from the day that
said Charles River bridge was completed and opened for passengers,
subject to all the conditions and regulations prescribed in the
act, entitled 'an act, incorporating certain persons for the
purpose of building a bridge over Charles river, between Boston and
Charlestown, and supporting the same during the term of forty
years; and during the aforesaid term of seventy years, the said
proprietors of Charles River bridge shall any may continue to
collect and receive all the toll granted by the aforesaid act for
their use and benefit.' There is then a proviso, that the
proprietors shall relinquish the additional toll on the Lord's day,
and shall continue to pay the annuity to the college, &c.

															This extension of the charter of Charles River bridge was made,
as set forth in the preamble to the grant. Whereas, the erection of
Charles River bridge was a work of hazard and utility, and another
bridge in the place proposed for the West Boston bridge, may
diminish the emoluments of Charles River bridge, therefore, &c.
The notice referred to, is contained in the report of a committee,
to whom had been referred the petition for the West Boston bridge,
and the remonstrance of Charles River bridge, and is in these
words: 'The committee further report, that after attending to the
memorial of the proprietors of Charles River bridge, and hearing
them fully on the subject, they are of the opinion, that there is
no ground to maintain that the act incorporating the proprietors
for the purpose of building a bridge from Charlestown to Boston, is
an exclusive grant of the right to build over the waters of that
river.' Such is the opinion of a committee; and supposing it to
have been adopted by the legislature, it would then be the opinion
of that body, and nothing more. How, then, can this opinion affect
or control the rights of the proprietors, held by them under a
former grant? If, instead of being an opinion merely, it had been a
declaratery act; still all the rights vested in the proprietors, by
their charter of 1785, would have remained in full force and
effect; and the charter of 1792 is merely a continuance of the
first, with all its rights, &c., and subject to all its
obligations. As this declaration of the legislature makes no part
of the act of 1792, all the rights which belonged to the
proprietors in 1785, belonged to them equally in 1792. If such a
declaration had been inserted in the act itself, extending the term
to seventy years, and the act had been accepted, the proprietors
might have been bound by it.

															But the import and meaning of this opinion have been mistaken.
It does not deny any claim made by the plaintiffs, but is entirely
consistent with it. It does not deny, that the proprietors have an
exclusive right between Boston and Charlestown; but does deny, that
they have an exclusive right over the whole river. There was a
petition before this committee for another bridge; not from
Charlestown to Boston, but from Cambridge to Boston; and the
committee say to the remonstrants, your exclusive right does not
extend to Cambridge, a distance of two miles; it is not an
'exclusive right to build over the waters of Charles river;' but
inasmuch as the proposed bridge may affect your emoluments, we
recommend an extension of your charter. It was seen, that the
proposed bridge would cause a consequential damage to Charles River
bridge; and it was on that ground, that the proprietors appealed to
the equity of the legislature; and it was on that ground alone, as
they expressly declare, that the legislature granted an extension
of their charter for thirty years.

															In the following cases, an exclusive right in ferries is fully
maintained. Churchman v. Tunstal , Hardr. 162; Tripp v. Frank , 4 T. R. 666; Chadwick's Case ,
2 Dane's Abr. 683. The case of Huzzey v. Field ,
recently decided in the exchequer, is reported in 2 Cromp. Messon
& Rosc. 432; and also in the 13th No. Law Journal, 239. In this
case, Lord ABINGER reviews the whole doctrine in relation to this
franchise; beginning with the earliest cases, and confirming all
the principles which are necessary to the support of the case at
bar. The case of the Islington Market , 2 Cl. & Fin. 513,
in which the opinion of the nine judges is given upon a series of
questions touching the franchise of a market, put to them by the
house of lords, reviews and confirms all the doctrines advanced in
support of the plaintiffs' claim in this case; and shows, most
conclusively, what the law of England is at this present time. The
law there is, essentially and truly, now, what it was three
centuries ago, in relation to all these franchises; and unless it
can be shown, that this law has been overruled by adjudged cases,
or modifed by statute, it is now the law of this country.

															Much has been said, in the course of this controversy, of
monopolies, and exclusive privileges; and these have been fruitful
themes of declamation. And what is a monopoly, but a bad name,
given to anything for a bad purpose. Such, certainly, has been the
use of the word in its application to this case. It is worth a
definition. A monopoly, then, is an exclusive privilege conferred
on one, or a company, to trade or traffick in some particular
article; such as buying and selling sugar or coffee, or cotton, in
derogation of a common right. Every man has a natural right to buy
and sell these articles; but when this right, which is common to
all, is conferred on one, it is a monopoly, and as such, is justly
odious. It is, then, something carved out of the common possession
and enjoyment of all, and equally belonging to all, and given
exclusively to one. But the grant of a franchise is not a monopoly,
for it is not part or parcel of a common right. No man has a right
to build a bridge over a navigable river, or set up a ferry,
without the authority of the state. All these franchises, whether
public property or public rights, are the peculiar property of the
state. They belong to the sovereign, and when they are granted to
individuals or corporations, they are in no sense monopolies;
because they are not in derogation of common right.

															But it is said, that the legislature has a right, in its
discretion, to grant ferries, bridges, turnpikes, and rail-roads,
whenever public convenience requires it; and that of this
convenience or necessity, they are the exclusive judges. I state
the proposition as broadly as it has ever been laid down, because I
have no wish to avoid its just consideration. It is admitted, then,
that the legislature has a general authority over these subjects;
but it is nevertheless a limited authority. It is not omnipotent,
like that of the British parliament, but is subjected to many
restraints and limitations. A state legislature can do wrong, and
has done wrong; and this court has corrected their errors, and
restored the rights which had, inadvertently, of course, been
invaded or taken away. The people, in forming their constitutions
of government, have imposed many restraints upon the exercise of
the legislative power. They have inserted in many of their
constitutions, certain fundamental principles, which were intended
to limit or wholly withdraw them from the power of the legislature.
They cannot abridge the liberty of speech or of the press; pass ex post facto laws; suspend the writ of habeas
corpus; or take private property for public use, without
compensation. These limitations and restraints upon the exercise of
legislative power, in Massachusetts, are imposed by its own
constitution.

															There are restraints imposed by the constitution of the United
States upon all state legislation; and one very important
restraint, a disregard of of which, in the opinion of the
plaintiffs, has brought this cause before this court; is, that no
state shall pass any law impairing the obligation of contracts. The
power conferred on this court, by the constitution of the United
States, of controlling, in certain specific cases, state
legislation, has given, and was intended to give, in the language
of this court, 'a bill of rights to the people of each state.' The
exercise of this ultimate conservative power, constitutes one of
the highest functions of this court. The wise men who framed this
constitution, clearly discerned, in the multiform operations of
human passions and interests, the necessity for some calm
controlling power; and in conferring it upon this court, they
exhibited the most profound wisdom, guided by human experience.

															The legislative power is restrained and limited by the
principles of natural justice. In the case of Calder v. Bull , 3 Dall. 388, Judge CHASE says, 'There are certain
vital principles in our free republican governments, which will
determine and overrule an apparent and flagrant abuse of
legislative power; as to authorize manifest injustice by positive
law; or to take away that security for personal liberty or private
property, for the protection whereof government was established. An
act of the legislature, for I cannot call it a law, contrary to the
first great principles of the social compact, cannot be considered
a rightful exercise of legislative authority. The obligation of a
law, in governments established on express compact, and on
republican principles, must be determined by the nature of the
power on which it is founded. A few instances will be sufficient to
explain what I mean. A law that punishes a citizen for an innocent
action, or in other words, which, when done, was in violation of no
existing law; a law that destroys or impairs lawful private
contracts; a law that makes a man a judge in his own case; or a law
that takes property from A. and gives it to B.: it is against all
reason and justice, for a people to intrust a legislature with such
power; and therefore, it cannot be presumed that they have done it.
The genius, the nature and the spirit of our state governments,
amount to a prohibition of such acts of legislation; and the
general principles of law and reason forbid them: the legislature
may enjoin, permit, forbid and punish; they may declare new crimes,
and establish rules of conduct for all their citizens, in future
cases; they may command what is right, and prohibit what is wrong;
but they cannot change innocence into guilt, nor punish innocence
as a crime; nor violate the right of an antecedent lawful private
contract, or the right of private property.'

															In the case of Fletcher v. Peck , 6 Cranch 135, the
court say, when, then, a law is in its nature a contract; when
absolute rights have vested under that contract; a repeal of that
law cannot divest those rights; and the act of annulling them, if
legitimate, is rendered so by a power applicable to the case of
every individual in the community. It may well be doubted, whether
the nature of society and of government does not prescribe some
limits to the legislative power; and if any be prescribed, where
are they to be found, if the property of an individual, fairly and
honestly acquired, may be seized, without compensation. To the
legislature, all legislative power is granted; but the question,
whether the act of transferring the property of an individual to
the public, be in the nature of the legislative power, is well
worthy of serious reflection.

															Regarding the practical operation and effect of the Warren
bridge charter upon the rights and property of the plaintiffs, the
case at bar comes clearly within the scope of the remarks cited
from Dallas and Cranch. In point of fact, it takes the property of
the plaintiffs, and gives it to the public. It is, in its
operation, an act of confiscation. It violates all those
distinctions of right and wrong, of justice and injustice, which
lie at the foundation of all law, and of all government; and if men
were to deal with each other as this act deals with the plaintiffs,
the very frame-work of our civil polity would be broken down; all
confidence would be destroyed; and all sense of security for the
rights of persons and property would be lost.

															Again, the legislative power is restrained and limited by its
own former grants. In Chitty's Prerogatives of the Crown, page 132,
he says: 'It is a principle of law, that the king is bound by his
own and his ancestors' grants; and cannot, therefore, by his mere
prerogative, take away vested rights, immunities or privileges.'
The same identical franchise which has been granted to one, cannot
be granted to another. The grant of a franchise is as much a grant
of property, as a grant of land; and if a grant of a franchise can
be resumed or annulled, so can a grant of land. Both are portions
of the public property; both vest in the grantees a property, a
beneficial interest; and in both, the grant is a contract
executed.

															Since this suit has been pending, a very important case has been
decided in the supreme court of appeals in the state of Maryland.
It is the case of the Canal Company v. Railroad
Company , 4 Gill & Johns. 1. The canal company's was the
prior grant. Surveys of the route for each of these great internal
works had been made; and it was found, that they approached so near
each other at a place called the Point of Rocks, that there was not
room enough for both, between the rocks and the river. In making
these surveys, the railroad company had preceded the other company;
they had located their route; purchased and condemned the land
necessary for their purpose; when their progress was arrested by an
injunction, at the instance of the canal company, who found it to
be impracticable to construct their canal by the side of the
railroad. And the question was, which had the prior right; and the
court, in a very elaborate opinion, decided it in favor of the
prior grant. This case is before the court, and many of the points
discussed and determined in the case, are among the important
points to be decided in this.

															Within all these distinctions, there was, and always will be,
ample room for the legislature to provide every convenience and
accommodation that public exigencies may require. And this can be
done, without resuming former grants, or taking private property
without compensation. They might have seized the plaintiffs'
franchise in the exercise of the eminent domain. All the property
in the state, under whatever title it may be held, may be thus
taken for public use, but upon the simple condition of making a
reasonable compensation for it. The legislature, however, did not
proceed, in the exercise of this high power, to provide for the
public accommodation, but they took the property without paying for
it. Or, they might have accepted the offer of the plaintiffs, as
set forth in their memorial on the 20th page of the record. By a
vote of the proprietors, the corporation offered, if the
legislature would give them the necessary authority, to make the
avenues to the bridge of any given width; to construct a circular
draw, so that passengers should not be delayed, when vessels were
passing through; to make the bridge itself as much wider as should
be deemed convenient; to construct a spur bridge, and even to build
a new bridge; thus submitting the whole matter to the judgment of
the legisiature, and pledging themselves to do all and whatsoever
they should authorize and direct them to do, in providing for the
public accommodation. This offer was declined, and no reasons
given; and it is admitted, that they were not absolutely bound to
accept it, or to give reasons for their refusal; but it is
certainly open to such inferences as the facts of the case will
warrant.

															But it is repeated, again and again, that the legislature had
found the fact, that the convenience of the public required another
avenue from Charlestown to Boston. What then? Does the finding of
this fact, justify any and all sorts of legislation? Is it any
excuse or justification for the resumption of a franchise, for the
annihilation of a vast amount of property without compensation? The
fact may be made the basis of legislation, but affords no excuse
for unjust or unconstitutional legislation. In the case of the Islington Market , before cited, the house of lords found the
fact, that public convenience required an enlargement of the old
market, or the establishment of a new one. A bill was pending for a
new market, and the house of lords, instead of proceeding to pass
the act, thought it proper to put a series of questions relating to
the matter, to the nine judges; they inquired of the judges, what
was the law; what they could do touching this market, consistently
with the existing rights of others? The answers are given at large;
and if the law, which is there declared to be the law of England,
had been applied to the plaintiff's case, when the act establishing
the Warren bridge was pending, it never would, and never could,
have passed.

															But the legislature proceeded to authorize the bridge to be
built, and granted a toll, out of which the whole expense was to be
paid. Accordingly, the bridge was built, and paid for out of the
tolls received. That being done, the functions of the legislature
ceased. They had provided another avenue, and paid for it; and
there their duty to the public ended. Was it a matter of common
convenience, or of public necessity, that the government, after
paying for the bridge out of the tolls, should put $20,000 a year
into the public treasury, or which is the same thing, give it to
the public? Is any man bold enough to vindicate the act upon this
ground? With the same right, the government might have repealed the
plaintiffs' charter, or passed an act requiring the tolls to be
paid into the public treasury. The indirect way in which the
franchise has been destroyed, does not alter the principle; for
what cannot lawfully be done directly, cannot be done indirectly.
The sole basis of the proceeding was, that public convenience
required another bridge, and it was justified by its advocates, on
this ground alone; the moment, therefore, that the government began
to fill its coffers from the tolls, it lost its original character,
and assumed a new one. It then became a matter of speculation and
profit, and not of public convenience or necessity.

															After all, the government have entirely failed to accomplish
their only lawful purpose, to wit, providing some further
accommodation for the public travel; for there is, at this moment,
but one travelled avenue between Boston and Charlestown. Since the
Warren bridge was made free, all the travel is over that bridge; to
which, if we now add the increase of travel for the last twelve
years, and the amount drawn from the other bridges, it will be
found, that the travel over this one bridge is nearly double what
it ever was over Charles River bridge. Yet the inconveniences and
dangers of passing over Charles River bridge, twelve years ago,
were so great, that the legislature, out of tender regard for the
safety of the people, granted another avenue. Now, though there is
nearly twice as much travel over this new avenue, no inconvenience
is experienced; and no complaint is made.

															The ground upon which the plaintiffs have always rested their
cause, was this: that their rights and their duties were
commensurate; they have always claimed an exclusive right between
Charlestown and Boston; and they have always stood ready to fulfil
all the obligations which that right imposed. Such is the law of
England, with regard to these franchises, as it is clearly stated
in the cases of Tripp v. Frank, Huzzey v. Field , already cited in relation to ferries; and the cases
of Prince v. Lewis , 5 Barn. & Cres. 363, and Mosely v. Walker , 7 Ibid. 40, in relation to markets.
The memorial of the plaintiffs is founded upon this reciprocity of
rights and duties; and all the English cases go upon the principle,
that the extent of the one, is the measure of the other.

															I do not go into any argument, to prove that the plaintiffs'
charter is a contract; but merely refer the court to the following
cases. Fletcher v. Peck , 6 Cranch 87; New
Jersey v. Wilson , 7 Ibid. 164; Terrett v. Taylor , 9 Cranch 49; 4 Wheat. 516; 8 Ibid. 84; Ibid. 50.

															But it is said, that if the legislature of Massachusetts has
taken private property for public use, without compensation, the
remedy is in the courts of the state. It is possible, that the case
here supposed, may happen; although it is not the case at bar.
Whatever may be the abuses of legislative power; whatever injuries
may be inflicted upon the rights of persons or of property; still,
if the obligation of a contract is not impaired, or some one of the
specific provisions of the constitution of the United States,
imposing restraints and prohibitions upon the states, is not
violated, this court has no jurisdiction. 2 Pet. 412-13. If
property held under a grant from the state is taken, in the
exercise of the eminent domain, provision for compensation is
always made in the act: and in such cases, no questions can arise;
as the property is taken by a paramount authority and paid for. But
if property thus held, is taken, and no compensation is provided,
it does give this court jurisdiction; because this grant is
declared to be a contract executed; the rights of the grantor are
said to be for ever extinguished, and a covenant implied, never to
re-assert them. When, therefore, this property thus held, is
resumed or destroyed by the grantor; the obligation of the contract
is impaired, the implied covenant is broken, and the jurisdiction
of this court attaches.

															Now, what is the aspect of the case at bar, in relation to this
matter? What issues do the pleadings present for the decision of
this court? The allegation in the plaintiffs bill is, that the act
of 12th March 1828, is repugnant to the constitution of the United
States; because it impairs the obligations of a contract. The
defendants in their answer deny this; and thus the only issue is
formed upon which this court can found a decree. The plaintiffs
nowhere affirm, that private property has been taken for public
use, by the state, in the exercise of the eminent domain; nor do
the defendants allege it, nor do the court below; on the contrary,
Chief Justice PARKER says, 7 Pick. 530, that there will be a decree
against the plaintiffs, in order that they may avail themselves of
the right secured to them by the constitution and laws, of a
revision by the supreme court of the United States; where it is
highly proper that this question, depending, as I think it does,
mainly upon the constitution of the United States, should be
ultimately decided.' The decree of the court below also asserts,
that no private property has been taken for public use.

															It is also apparent, from the act itself, that the legislature
did not intend to seize the franchise of the plaintiffs, by virtue
of the eminent domain; for they made no provision, in the act, for
compensation. Now, it is the settled law of Massachusetts, that in
all cases where private property is taken for public use, provision
for compensation must be made in the act itself. But in the case at
bar, it appears, that the legislature carefully avoided the open
and avowed intention of exerting this high power, confided to them
by the constitution, by making provision for the compensation, only
in cases where real estate should be taken. The constitution says,
that where property is taken for public use, compensation shall be
made; the legislature say, in this act, that where real estate is
taken, compensation shall be made. Now, this franchise of the
plaintiffs is not real estate, although it is property; and by this
exclusion of the word property, it is most manifest, that the
legislature did not intend, and did not, in fact, seize the
franchise as private property, for public use. They proceeded on
the ground of right to make the grant in question, without
compensation; this right is denied, on the ground that it resumes
or destroys a former grant, and thus impairs the obligation of a
contract. This, then, presents the issue, and the only one of which
this court has jurisdiction.

															It is admitted, that the right of eminent domain is an incident
of sovereignty, and cannot be alienated. And it is also admitted,
that all the property of the citizens of the state is liable to the
exercise of this paramount authority. No matter by what title it is
held, it is all alike subject to be taken for public use. The
exercise of this power, however, is restricted by an express
provision in the state constitution, that compensation shall be
made. This fundamental law is inserted in the constitution of the
United States, as well as in that of many of the states; and the
following cases show how fully this principle has been recognised
and acted upon, by the judicial tribunals of the country. 2 Dall.
304; 9 Cranch 43; 2 Pet. 655; 1 Kent's Com. 425; 2 Johns. Ch. 162;
12 Mass. 468; 7 Ibid. 395.

															The doctrine of consequential damages, sometimes referred to in
the court below, can have no application to the case at bar; except
on the ground that the grant of the Warren bridge does not impair
the former grant; or if it does, that the plaintiffs are not
entitled to compensation. In making the grant, it is assumed, that
the legislature merely granted what was its own; and if the
plaintiffs have suffered by the exercise of a lawful power, it is a
case of damnum absque injuria , for which the law gives no
remedy. This argument, as applied to the case in the court below,
by a learned judge, assumes the whole matter in dispute, and need
not, therefore, be further pursued; but I would merely ask, whether
any case can be found, to which this doctrine has been applied in
justification, in which the consequential injury has been not
partial and incidential, but total.

															It has been often repeated, that the plaintiffs have received
more than $1,000,000, in the course of about fifty years; and it is
urged, that this is a sufficient consideration for building and
maintaining the bridge; and that no injustice is done, by cutting
off twenty years of the term. Even a learned judge in the court
below, says, that the consideration should be in 'some measure
adequate.' And is not a good, a valid, a meritorious consideration,
in some measure adequate? Was it not, at the time of the contract,
fully adequate? And can one of the parties rescind it now, because
it has turned out to be more beneficial than was anticipated by
either?

															I will not further trespass upon the patience of the court, by
showing that an inquiry by a committee of the legislature, is not
equivalent to a writ of ad quod damnum executed, which is a
judicial process; because I have already shown, that, even such a
process, in England, is not conclusive upon the rights of the
parties. If, therefore, it were equivalent, it would settle
nothing; but it has no resemblance to it, and is not worthy of
further notice.

															Upon the validity of this act of the 12th of March 1828, this
court have now to pronounce a final judgment, which must decide the
title to a vast amount of property. This property has been held
under a grant from the state, for nearly half a century; it has
been bought and sold in open market, under the eye of the
government; it has been taken in payment of debts and legacies;
distributed in every form, in the settlement of estates, without
notice, or even a suspicion, that the title was bad. It has been
for many years, sought for as a safe and profitable investment, by
guardians, trustees, charitable institutions, and such other
persons as are obliged to intrust their property to the management
of others, in whom they place confidence. And yet, these owners of
this property, who have purchased, or taken it, at its market
value, and who have not received more than the legal interest of
their money, are represented as odious monopolists, exacting
enormous profits upon a capital which has been repaid to them over
and over again. The original stockholders are all dead; or, if any
of them are still living, the property has long since passed out of
their hands; but if they were now living, and holders of this
property, they would not have gained more, nor so much, by their
purchase, as those who bought real estate at that period, and kept
it till the present time. At length, however, the grantor finds
that these owners have no good title to this property; and without
judicial process or inquiry, confiscates the whole to the use of
the public.

															But the principles to be established by the judgment of the
court, in this case, will decide the title to more than
$10,000,000, in the state of Massachusetts alone. If that judgment
shall decide, that the legislature of Massachusetts has the
constitutional power to pass the act in question; what and where is
the security for other corporate property? More than $4,000,000
have been invested in three rail-roads, leading from Boston, under
charters granted by the legislature. The title to these franchises
is no other, and no better, than that of the plaintiffs. The same
means may be employed to accomplish the same ends; and who can say,
that the same results will not follow? Popular prejudice may be
again appealed to; and popular passions excited, by passionate
declamations against tribute money, exclusive privileges, and
odious monopolies; and these, under skilful management, may be
combined, and brought to bear upon all chartered rights, with a
resistless and crushing power. Are we to be told, that these
dangers are imaginary? That all these interests may be safely
confided to the equity and justice of the legislature? That a just
and paternal regard for the rights of property, and the obligations
of good faith, will always afford a reasonable protection against
oppression or injustice? I answer all such fine sentiments, by
holding up the charter of Charles River bridge; once worth half a
million of dollars, and now not worth the parchment it is written
upon.

															I have as much respect for, and confidence in, legislative
bodies, as reason and experience will warrant; but I am taught by
both, that they are not the safest guardians of private rights. I
look to the law; to the administration of the law; and above all,
to the supremacy of the law, as it resides in this court, for the
protection of the rights of persons and property against all
encroachment, by the inadvertent legislation of the states. So long
as this court shall continue to exercise this most salutary and
highest of all its functions, the whole legislation of the country
will be kept within its constitutional sphere of action. The result
will be general confidence and general security.

															I have thus attempted to satisfy the court, that by virtue of an
assignment in equity, or a surrender at law, of an ancient ferry,
and the act of 1785, incorporating the plaintiffs, a franchise or
beneficial interest was, absolutely, and without condition or
reservation, vested in them, for the time limited; and the
franchise so vested is recognised as property, and protected as
property, both by the law of England and of this country; that, in
order to make this protection available, it must, of necessity,
have some local extent, sufficient, at least, to keep down ruinous
competition; or, in other words, that it must be exclusive between
Charlestown and Boston. That the grants of 1785 and 1792,
constituting the charter of the plaintiffs, being made on good,
valid, adequate and meritorious considerations, are entitled to a
liberal construction for the grantees; that these grants, according
to the decisions of this court, constitute a contract; that the act
of March 12th, 1828, establishing the Warren bridge corporation,
impairs the obligation of this contract, by resuming this
franchise, and divesting the plaintiffs of this property, without
compensation: and that their only remedy is in this court, under
the constitution of the United States. Greenleaf , for the defendants, argued-1st. That the
present situation of the cause presented insuperable objections to
any decree in favor of the plaintiffs. The Warren bridge, which is
the subject of complaint, has now become the property of the
commonwealth, by the terms of the original charter. The defendants
were merely authorized to indemnify themselves, for the cost of the
erection of the bridge, by collecting tolls, for a period not
exceeding six years from the commencement. They were afterwards
constituted the agents of the commonwealth, by special statues, to
receive tolls for its use, two years longer; but those statutes
having expired, the bridge has become free.

															The general objects of the plaintiffs' bill are, first, to
obtain reimbursement of the tolls already diverted from their
bridge, and received at the Warren bridge; and secondly, to prevent
the use of the latter, as a public way. In the decision of this
cause, this court will exercise no larger jurisdiction than was
possessed by the supreme judicial court of Massachusetts; and will
render no other decree than ought to have been rendered by that
tribunal. It is well known, that the people of that state, in the
grant of equity powers, have manifested great reluctance, and a
decided preference for the common-law remedies; intending to
preserve the jurisdiction of the common law, 'in all cases where
that is capable of affording substantial and adequate relief.' 6
Pick. 397. Now, for the mere diversion of tolls, there is 'a plain,
adequate and complete remedy at law,' by an action on the case; and
therefore, by the rules which the courts of that state have
prescribed to themselves, there is none in equity. The only ground
on which this part of the claim could be sustained in equity, would
be, by charging the defendants as trustees. But it has been held in
Massachusetts, that the equity powers of the supreme judicial court
extend only to cases expressly designated by statute (6 Pick. 395);
and that no trusts were cognisable there, except those arising
under deeds, and which are expressly declared in writing. Dwight v. Pomeroy , 17 Mass. 327; Safford v. Rantoul , 12 Pick. 233; Given v. Simpson , 5
Greenl. 303.

															The only ground, therefore, on which the court can deal with the
tolls, is, that having possession of the bill for the purpose of
injunction, it may extend its decree over all the incidental
equities of the cause. But this court can make no decree which can
relieve the complainants, because there are no parties before it
capable of obeying an injunction. The bridge having become the
property of the state, these defendants have neither right nor
power to prevent the use of it as a way. The commonwealth is the
only party whose rights are to be affected by whatever decree may
be made in regard to the bridge; and no injunction can be issued
against one not party to the suit. Fellows v. Fellows , 4 Johns. Ch. 25. The general doctrine of equity is,
that all who are necessary to the relief, or are materially
interested in the subject-matter, must be joined. Sangosa v. East India Company , 2 Eq. Cas. Abr. 170; Davoue v. Fanning , 4 Johns. Ch. 109; 2 Madd. Ch. 179. It is true, that
the interest of other persons, not parties, is no valid objection,
where the court can make a decree, as between those already before
it, without affecting the rights of those who are not called in. Mallow v. Hinde , 12 Wheat. 193; Ward v. Arredondo , 1 Paine 410. It is also true, that if the absent
parties in interest are without the jurisdiction of the court, it
will, in some cases, in its discretion, proceed without them;
provided their rights are separable from those of the defendants,
and will not be irrevocably concluded by the decree. West v. Randall , 2 Mason 190, 196. But if the rights of such absent
parties are inseparably connected with those of the parties
present, no decree will be made till they are called in. Mitford's
Pl. 133, 146; Wiser v. Blachly , 1 Johns. Ch. 437. And
this court has declared, that it will not make a final decree upon
the merits of a case, unless all the persons, whose interests are
essentially affected, are made parties to the suit; though some of
those persons are not within the jurisdiction of the court. Russell v. Clarke , 7 Cranch 69, 98. The fact that the
absent party in interest is a sovereign state, makes no difference.
The language of the court in Osborn v. United States
Bank , 9 Wheat. 738, does not apply to a case like the present;
but only to that of a public officer who has collected money for
the state, which he still holds, and has been notified not to pay
over; the constitutionality of the exaction being denied. But
however that doctrine might apply to the tolls received, if that
subject were cognisable in equity by the supreme judicial court of
Massachusetts; it cannot apply to the bridge itself, which is real
property, not belonging in equity to these plaintiffs; and is, in
no sense, in the hands of the defendants. To retain jurisdiction
here, is to sue the state, and virtually to effect a judicial
repeal of the constitutional provision on this subject. The court,
by its decree, can only affect so much of the bridge as constitutes
the nuisance complained of; and this is, not the existence of the
bridge, in its present position, but the use of it as a way. Such a
decree these defendants cannot execute; and it, therefore, can
afford the plaintiffs no relief.

															2. The ferry, of which the plaintiffs claim to be assignees,
extended no farther than the landing places, and was subject to the
control of the state. The policy of Massachusetts, from its first
settlement, has been, to retain all ferries within its own control;
the ferryman having nothing but a license to take tolls, during the
public will. The well-known principles and sentiments of the
pilgrims, were strongly opposed to everything in the shape of
monopoly. Hence, as early as 1635, after a ferry had been set up by
Brown, between Boston and Charlestown, another ferry, as it is
termed, but between the same landing places, was ordered to be set
up, to be kept by a person, resident in Boston; clearly showing,
that in the estimation of the general court, the existing ferryman
had no exclusive rights there. In 1641, the limits of all ferries
were expressly defined by statute, as extending from the place
where the ferry was granted, 'to any other ferry-place, where
ferry-boats use to land;' and in the same year, an act was passed,
in the nature of a constitutional declaration, that no monopolies
should be granted or allowed in in the colony. With this
declaration before them, and with such principles in view, the
legislature, in 1650, confirmed the ferry-rent to the college;
meaning not to repeal the acts of 1641, but to permit the college
to receive such tolls as might be collected at the ferry, subject
to any further order of the legislature. On the same principles,
successive statutes were passed, in 6 Wm. & M.; 8 Wm. III.; 4
Geo. I.; 13 Geo. I.; and 33 Geo. II.; regulating this and other
ferries; and authorizing the court of sessions to set up ferries,
in any place whatever, at its discretion. If, then, it be true,
that the history and situation of a state may be resorted to, in
order to expound its legislative intentions, as was said in Preston v. Browder , 1 Wheat. 115; and that charters
are to be expounded, as the law was understood, when the charters
were granted (2 Inst. 282); it was never the intention of the
legislature, in permitting this ferry to be set up, to grant
anything more, than the right to run boats from one landing to the
other, during its pleasure, and subject to its control. The
ferry-right was co-extensive only with the obligations of the
boatmen; who were bound, merely to convey from one landing to the
other. In the exercise of this right of the state, it has granted
toll bridges, at pleasure, in the place of nearly, or quite, every
ancient ferry in the commonwealth; to the utter annihilation of the
ferry, and without indemnity to the ferrymen. No claim has ever
been set up, except by these plaintiffs, adverse to the public
right.

															The argument, that the ferry franchise extends so far as to put
down all injurious competition, is erroneously applied in this
case; as it supposes the opening of a new avenue, by the state, to
be a mere private competition. The authorities on this subject
apply only to a private ferry, set up without license. Yard v. Ford , 2 Saund. 172; Ogden v. Gibbons , 4
Johns. Ch. 160; Stark v. McGowen , 1 Nott & McCord
387; Newburg Turnpike Co. v. Miller , 5 Johns. Ch.
101; Blissett v. Hart , Willes 508. In the present
case, the public not being accommodated, the legislature has merely
done its duty in providing for the public convenience, which the
plaintiffs had not the legal power to do. Mosley v. Walker , 7 Barn. & Cres. 40, 55; Macclesfield v. Pedley , 4 Barn. & Ad. 397.

															3. But whatever may have been the extent of the ferry, it never
passed to the plaintiffs, but was taken by the state, for public
use; and was thereby extinguished, in the paramount rights of the
sovereign power, by which it was resumed. 17 Vin. Abr. 83, Prerog.
I. b; 4 Ibid. 163; Prerog. X. c. 5; King v. Capper , 5
Price 217; Atty. Gen. v. Marquis of Devonshire , Ibid.
269. The documents in the case negative the idea that the
transaction of 1785 amounted to a purchase of the franchise from
the college; the object of the tolls being declared to be not only
an indemnity to the plaintiffs, but for a revenue to the college.
It is no purchase from the college, because the legal evidence, a
deed, is wanting. Rex v. North Duffield , 3 M. &
S. 247; Peter v. Kendall , 6 Barn. & Cres.
703.

															4. Neither the grant of the ferry, whatever it was, nor the
plaintiffs' charter, contained anything exclusive of the public
right to open a new avenue in the neighborhood of Charles River
bridge; for in a public grant, nothing passes by implication. The
right thus said to be parted with, is one which is essential to the
security and well-being of society; intrusted to the legislature
for purposes of government and general good; and such rights are
never presumed to be conveyed or restricted. Nothing passes by a
charter or legislative grant, except well-known and essential
corporate powers, where a corporation is created; unless it is
contained in express words. Rex v. Abbott of Reading ,
39 Edw. III. 21; 17 Vin. Abr. 136, Prerog. E. c. 5; 8 Hen. IV. 2; Ford & Sheldon's Case , 12 Co. 2; Chancellor, &c.
of Cambridge v. Walgrave , Hob. 126; Stanhop v. Bp. of Lincoln , Ibid. 243; Case of Mines , 1 Plowd.
310, 336-7; Case of the Royal Fishery of the Banne , Dav.
149, 157; Case of Customs , Ibid. 45; Atty-Gen. v. Farmen , 2 Lev. 171; Finch's Law 100; Blankley v. Winstanley , 3 T. R. 279; King v. Capper , 5
Price 258; Ibid. 269; Parmeter v. Gibbs , 10 Ibid.
456-7; Stourbridge Canal v. Wheeley , 2 B.
& Ad. 792; Leeds & Liverpool Canal v. Hustler , 1 B. & Cres. 424; Dock Co. v. La
Marche , 8 Ibid. 42; The Elsebe , 5 Rob. 155, 163; The
Joseph , 1 Gallis. 555; Jackson v. Reeves , 3
Caines 303, 306; McMullen v. Charleston , 1 Bay 46-7; Zylstra v. Charleston , Ibid. 382; 2 Cranch 167; Wilkinson v. Leland , 2 Pet. 657; Lansing v. Smith , 4 Wend. 9. The cases where the king's grant has
received a construction like a private grant, are all cases of
grants of his private property; and not of things held as
sovereign, in right of his crown. Upon this ground, the plaintiffs'
charter gave them a franchise co-extensive with the bridge itself;
it authorized them to erect a bridge, and to take tolls of such
persons as might pass over it; but nothing more.

															5. If a contract to that effect should be implied, it would be
void for want of authority in the legislature to make such a
surrender of the right of eminent domain. Every act of a public
functionary is merely an exercise of delegated power, intrusted to
him by the people, for a specific purpose. The limits of the power
delegated to the legislature, are to be sought, not only in the
constitution, but in the nature and ends of the power itself, and
in the objects of government and civil society. 6 Cranch 135; 3
Dall. 387-8; 1 Bay 62. And the acts of legislators are the acts of
the people, only while within the powers conferred upon them. 6
Cranch 133. Among the powers of government, which are essential to
the constitution and well-being of civil society, are not only the
power of taxation, and of providing for the common defence, but
that of providing safe and convenient ways for the public necessity
and convenience, and the right of taking private property for
public use. All these are essential attributes of sovereignty,
without which no community can well exist; and the same necessity
requires, that they should always continue unimpaired. They are
intrusted to the legislature, to be exercised, not bartered away;
and it is indispensable, that each legislature should assemble,
with the same measure of sovereign power, that was held by its
predecessors. In regard to public property, the power of the
legislature to alienate it, is conceded. The limitation now
contended for, extends only to those sovereign powers which are
deemed essential to the constitution of society. In regard to
these, any act of the legislature, disabling itself from the future
exercise of its trust for the public good, must be void; being, in
substance, a covenant to desert its paramount duty to the people.
Such, it is apprehended, would be a covenant not to erect a
fortress on a particular tract of land sold; or not to provide ways
for the public travel, however great the necessity, either in a
particular place, or for a specified time. It is not necessary,
that such exclusive contracts be made, in order to induce men to
adventure in a new and hazardous undertaking for the public good;
for, upon the positive assurance of remuneration, in some other
form, capital and enterprise can always be commanded.

															The true distinction between those acts of future legislatures
which may, and those which may not, be restrained, is conceived to
lie, not in the kind particular spot, is a covenant in restraint of
special legislation; yet it would manifestly be void. And by a
similar enumeration and description of particular places, the right
to provide railroads, bridges and canals, in every part of the
state, might be alienated to individuals. The example of land
exempted from taxation is not to the purpose; such exemption is
presumed to be purchased by the payment of a sum in gross, instead
of an annual tax, which all are bound to pay. The owner of the land
does not buy up a portion of the sovereign power; he only pays off,
at once, a debt which was due by instalments. Other examples are
given, in the agreement not to charter another bank, and the like.
But these contracts do not abridge any powers essential to civil
society. The state must be governed and defended; and the people
must have facilities for common travel; and to these necessities,
the power of each legislature must be adequate. But the existence
of a bank is not of similar necessity; it stands wholly upon
considerations of policy and convenience.

															The existence of some limit to the exercise of powers thus
delegated in trust, and their inalienable nature, is no new
doctrine; but is familiar to public jurists. Domat, Pub. Law, book
1, tit, 6, § 1, par. 12, 14, 16; Puffend. de Jure Nat. et
Gent. , lib. 8, cap. 5, § 7; 17 Vin. Abr. Prerog. M. b. pl. 20;
Chitty on Prerog. 385; Atty-Gen. v. Burridge , 10
Price 350. The same doctrine has been recognised here, in the case
of political corporations. Presbyterian Church v. City of
New York , 5 Cow. 538; Goszler v. Georgetown , 6
Wheat. 593; Auburn Academy v. Strong , 1 Hopk. Ch.
278.

															6. The grant of the charter of Warren bridge is no breach of any
contract with the plaintiffs, they having originally accepted their
charter, subject to the paramount right of eminent domain; and
having, also, in 1792, accepted its extension, with a distinct
submission and assent to an express assertion, on the part of the
state, of a right to make new grants, at its discretion. All
property held by individuals, is charged with the jus
publicum , which belongs to all men. Hale, de Port. Mar. cap. 6;
10 Price 460. One branch of this jus publicum is the right
of way, to be designated by the legislature. This is said to be one
of the principal things which ought to employ the attention of
government, to promote the public welfare and the interests of
trade; and that nothing ought to be neglected to render them safe
and commodious. Vatt. b. 1, ch. 9, § 101, 103; Domat, b. 1, tit. 8,
§ 1, 2. The power to do this, is as much inherent and inalienable,
as the right of taxation; which, it is said, resides in the
government, and need not be reserved expressly, in any grant of
property or franchises, to individuals or corporations. Providence Bank v. Billings , 4 Pet. 560, 561, 563.
Ferries, turnpikes, railroads, toll bridges and common roads, are
equally public ways; differing only in the manner of their
creation. Each act of location is an exercise of sovereign power;
and the easement thus acquired is paid for by the people; either
directly, from the public chest, or indirectly, by tolls. But the
laying out of a common road has never been supposed to violate the
charter of a neighboring turnpike, however it may impair its tolls;
nor has the establishment of one kind of public road, whether by
charter or otherwise, ever been considered as an injury, in legal
contemplation, to another of a different kind. And if not to
another of a different kind, why should it be to another of the
same kind? If a turnpike may be rendered useless by a railroad, or
a common highway, why not by another turnpike? Beekman v. Saratoga Railroad Co. , 3 Paige 45; Irvin v. Turnpike Co. , 2 P. & W. 466; Green v. Biddle , 8 Wheat. 88-9. This court has never gone so far as
to hold the statute of a state void, as violating its implied
contract; the cases to this point are all ones of express contract. Vanhorne v. Dorrance , 2 Dall. 320; Fletcher v. Peck , 6 Cranch 87; New Jersey v. Wilson , 7
Ibid. 164; Terrett v. Taylor , 9 Ibid. 43; Dartmouth College v. Woodward , 4 Wheat. 518; Green v. Biddle , 8 Ibid. 1. On the contrary, this
court has refused to imply a contract, in a case similar in
principle to the present; and has declared, that where there is no
express contract, the remedy of the party was in the wisdom and
justice of the legislature. Jackson v. Lamphire , 3
Pet. 289; Providence Bank v. Billings , 4 Ibid. 563; United States v. Arredondo , 6 Ibid. 729.

															But this point stands not on general reasoning alone. By stat.
33 Geo. II, the courts of sessions in Massachusetts were expressly
authorized to establish ferries, in all places, at their
discretion. This is a clear assertion of the public right to make
new avenues, by water, wherever public convenience may require; and
the statute was in full force in 1785, when the plaintiffs received
their charter, and is to be taken into the elements of its
exposition. It continued in force, in 1792, when West Boston bridge
was chartered; and the same provision was revised and re-enacted in
1797, and continued in force, in 1828, when the charter of Warren
bridge was granted. If, then, it was lawful to establish one kind
of public avenue, by the side of the plaintiffs' bridge; it was
equally lawful to establish any and every kind. If any doubts could
arise on this point, it is made clear, by reference to the
transactions of 1792. The plaintiffs, at that time, remonstrated
against the grant of the charter of West Boston bridge, on the
ground of their exclusive right; first, as purchasers of the ferry;
and secondly, by their charter of 1785. The whole subject was
referred to a committee of the legislature, before whom all parties
were fully heard. The great question was, whether the legislature
had a right, at its discretion, to make new avenues over Charles
river to Boston; and whether the plaintiffs' charter gave them any
exclusive privileges. The committee reported strongly in favor of
the right of the state, and against the existence of any exclusive
right in the plaintiffs; but recommended an extension of the term
of continuance of the plaintiffs' charter, on grounds of public
expediency, as a mere gratuity; and it was done.

															The extension of the charter, together with this contemporaneous
exposition, the plaintiffs accepted in the same year; and again in
1802, without protest or objection. It is absurd, to suppose, that
the legislature intended to grant exclusive privileges, in the same
breath in which their existence was denied. The general principle
that the legislative history of the passage of a statute furnishes
no rule for its exposition, is admitted. But it applies only to the
exposition of statutes as such. Private statutes, regarded as
contracts, are to be expounded as contracts; in which all the res gestae , or surrounding circumstances, are to be
regarded. The report of the committee, therefore, was a
contemporary document between the same parties, relating to the
same subject-matter; and in a case between private persons, it
would be received, in equity, either to interpret or reform the
agreement. If the acts of parties expound their intentions, much
more a solemn transaction like this. ( Blankley v. Winstanley , 3 T. R. 279; Gape v. Handley ,
Ibid. 288 note; Hunter v. 15 East 100; Saville v. Robertson , 4 T. R. 720.) Cooke v. Booth , Cowp.
819, asserts the same doctrine, though its application to express
covenants has been denied. The charter, extended on these
principles, and coupled with such declarations, was accepted by the
plaintiffs, in 1802, unconditionally, and without objection. On the
application for Canal bridge, in 1807, the plaintiffs again opposed
the grant, and were again heard; and the state again denied their
exclusive right, and asserted its own, to open avenues at its
discretion. And the plaintiffs again, in 1826, in a more solemn
manner, accepted the renewed charter; without any denial of the
right asserted by the state.

															It is objected, that the state, by an act which annihilates the
plaintiffs' tolls, has virtually resumed its own grant. To this it
is replied, that the principle which forbids the resumption of
one's own grant, does not apply to the exercise of the eminent
domain. Thus, a turnpike road may be appropriated, to make a canal. Rogers v. Bradshaw , 20 Johns. 735. It is further
objected, that though the original outlays may have been
reimbursed, with interest, from the tolls; yet that the act of 1828
has ruined the property of subsequent innocent stockholders, who
have made their investments at a high price. But all such are
purchasers with notice. The statute of 33 Geo. II., was fair
notice, beforehand, of the public right to open new avenues, over
waters, at discretion. This right, in regard to bridges over
Charles river, was expressly asserted in 1792; it was acted upon in
the subsequent grant of the Middlesex canal; it was again expressly
asserted in 1807, upon the granting of the charter of the canal
bridge; and was more recently acted upon in the charter of the
Lowell railroad.

															7. If the plaintiffs have sustained any damages, not
anticipated, nor provided for, they are merely consequential, for
which no remedy lies against these defendants; nor is it a case for
the interference of this court; but it is only a ground of
application to the commonwealth of Massachusetts. That the
defendants were mere public agents, in the erection of Warren
bridge, was conceded in the argument of this cause, in 6 Pick. 388.
And it is equally clear, that the remedy, at common law, for the
damages of which the plaintiffs complain, if the act of the
defendants were unjustifiable, must have been by an action on the
case, and not in trespass. For the gravamen is, not that their
property has been directly invaded; but that an act has been done,
in another place, in consequence of which the income of that
property is reduced; their damages, therefore, are strictly
consequential. In regard to such damages, the constitution of
Massachusetts, art. 10, has already received an authoritative
exposition, in Callender v. Marsh , 1 Pick. 418,
deciding, that to those damages, it does not apply. So, in
Pennsylvania, Shrunk v. Schuylkill Navigation
Company , 14 Serg. & Rawle 71, 83; and in New York, Varick v. New York , 4 Johns. 53. Statutes enabling
agents to effect a great and beneficial public object, ought to be
benignly and liberally expounded, in favor of those agents. Jerome v. Ross , 7 Johns. Ch. 328. And they,
therefore, are held not liable for any consequential damages,
resulting from acts done under and within the terms of a statute. Spring v. Russell , 7 Greenl. 273; Custis v. Lane , 3 Munf. 579; Lindsay v. Charleston , 1
Bay 252; Stevens v. Middlesex Canal , 12 Mass. 468; Rogers v. Bradshaw , 20 Johns. 744-5; British Cast
Plate Manufacturers v. Meredith , 4 T. R. 794; Sutton v. Clarke , 1 Marsh. 429; S. P. 6 Taunt. 29; 6
Pick. 406. It is only when agents exceed the powers conferred on
them by the act, that they become trespassers. Belknap v. Belknap , 2 Johns. Ch. 463; Shand v. Henderson ,
2 Dow P. C. 519. If the property is taken for public use, the state
is bound to make compensation, and trespass does not lie. If it is
consequentially impaired in value, by the prosecution of public
works, it is damnum absque injuria , at law; and addresses
itself only to the consideration of the legislature.

															If here is no violation of contract, the question whether a
state law violates a state constitution, is not to be raised in
this court. Jackson v. Lamphire , 3 Pet. 289. There
are cases, in which it has been gratuitously thrown out, that the
constitutional right to trial by jury extends to cases of property
taken for public uses. Perry v. Wilson , 7 Mass. 393; Callender v. Marsh , 1 Pick. 418; Vanhorne v. Dorrance , 2 Dall. 304. But each of these cases stood on
other grounds; and in neither of them, was this the point
necessarily in judgment. In other cases, it has been held, that
this constitutional right applies only to issues of fact, in the
ordinary course of civil and criminal proceedings. Livingston v. New York , 8 Wend. 85; Beekman v. Saratoga and Schenectady Railroad Company , 3 Paige 45. No
state has gone so far as to hold, that the money must be paid,
before the title of the owner is divested. On the contrary, in
Massachusetts, in the location of roads, the title of the owner is
divested, as soon as the return is accepted; though the amount of
compensation may be litigated for years. In Kentucky, in certain
cases, a private bond is held sufficient to effect a similar
purpose ( Jackson v. Winn , 4 Litt. 327); and in
Pennsylvania, it is effected by the mere giving of a right of
action; whether against the state ( Evans v. Commonwealth , 2 Serg. & Rawle 441; Commonwealth v. Shepard , 3 P. & W. 509); or against a private
corporation. Bertsch v. Lehigh Coal and Navigation
Company , 4 Rawle 130. Now, the faith of the state, pledged
expressly in its constitution, is at least as valuable as any right
of action, whether against an individual, or the state itself; and
ought to be equally effectual to divest the title of the owner.

															The general principle of public law is, that any private
property may be taken for public use, or may be destroyed, or
private rights sacrificed, whenever the public good requires it.
This eminent domain extends over all the acquisitions of the
citizen, and even to his contracts and rights of action. Grotius, de Jure Belli, &c. , lib. 2, c. 14, § 7; and lib. 3, c.
19, §§ 7, 14, 15; and c. 20, § 7; Vatt. b. 1, c. 20, § 244;
Puffend. de Jure Nat. &c. , lib. 8, c. 5, § 7;
Bynkershoeck, Quaest. lib. 2, c. 15, ¶2, 3, 6, 10; 3 Dall.
245. All these writers agree, that compensation ought to be made;
but no one has intimated that the taking is not lawful, unless the
compensation is simultaneously and especially made or provided for.
On the contrary, they all suppose, that the property is first
taken, and afterwards paid for, when, and as soon as, the public
convenience will permit; and this, without regard to the urgency of
the cause for which it was taken; nor, whether in war or peace. It
is obvious, that in a large proportion of the public exigencies,
the compensation must necessarily be provided for, after the
property is taken. Commonwealth v. Fisher , 1 P. &
W. 465. Our constitutional provisions on this subject, seem nothing
more than express recognition of the right to compensation; and
were probably inserted, in consequence of the arbitrary
impressments of property, made during the war of the revolution. 1
Tucker's Bl. Com. part 1, app'x, 305. The passage in 1 Bl. Com.
138-9, amounts only to this, that the legislature obliges the party
to sell, and fixes the price. 4 T.R. 797. But the constitution
applies to property directly taken, and not to cases where its
value is only consequentially impaired; and so it has been
expounded by Massachusetts, in her general road laws, and in all
her charters for public ways, whether bridges, roads or canals. The
residue of the subject of eminent domain, not having been touched
by the constitution, remains among the great principles of public
law, having an imperative force on the honor and conscience of the
sovereign; and the objection is not to be tolerated, in a court of
law, that a sovereign state, in the exercise of this power, will
not do what justice and equity may acquire. Tippets v. Walker , 4 Mass. 597; Commonwealth v. Andre , 3
Pick. 224; 2 Dall. 445.

															If Massachusetts has taken the property of the plaintiffs for
public use, her honor is solemnly pledged, in her constitution, to
make adequate compensation. If their rights have been sacrificed,
for higher public good, the laws of nations equally bind her to
restitution. From these obligations she could not seek to escape,
without forfeiting her caste , in this great family of
nations. Her conduct in this matter has been uniformly dignified
and just. The plaintiffs have never yet met her, except in the
attitude of stern and uncompromising defiance. She will listen with
great respect, to the opinion and advice of this honorable court;
and if her sovereign rights were to be submitted to arbitration,
there is, doubtless, no tribunal to whose hands she would more
readily confide them. If she has violated any contract with the
plaintiffs, let them have ample reparation by a decree. But if not,
and they are merely sufferers by the ordinary vicissitudes of human
affairs, or by the legitimate exercise of her eminent domain, let
it be presumed here, that a sovereign state is capable of a
just regard to its own honor, and that it will pursue, towards its
own citizens, an enlightened and liberal policy.

															Let it not be said, that in the American tribunals, the
presumption and intendment of law is, that a state will not redeem
its pledges, any further than it is compelled by judicial coercion;
that it is incapable of discerning its true interests, or of
feeling the force of purely equitable considerations; and that its
most solemn engagements are worth little more than the parchment on
which they are written. Let such a principle be announced from this
place, and it is easy to foresee its demoralizing effects on our
own community. But proclaim it to Europe, and we shall hear its
reverberations, in tones louder than the thundering echoes of this
capitol; with the bitter taunt, that while the unit monarch of the
old world, is the dignified representative of national honor, the
monarch multitude of the new, is but the very incarnation of
perfidy. Davis , also of counsel for the defendants.-I approach
this case with unaffected diffidence and distrust of my capacity to
aid my employers, or enlighten the court. It has been long pending;
has excited great interest; has drawn to its investigation, the
intellect and learning of many distinguished men and eminent
jurists. The whole ground has been so thoroughly explored, that
little is left untouched which is worthy of examination, or can
excite curiosity. If others had not exhausted the subject, my
worthy and learned associate has brought such untiring industry
into the case, that nothing remains to me, but a method of my own,
less perfect than his; and a mere revision of the subject under
this arrangement. Both parties are corporations; both created by
the state legislature; both claim rights across a navigable river;
both, therefore, claim something from the eminent domain of the
state. The plaintiffs claim to be first in time, and for that
reason, to override the defendants' title. They assert an exclusive
right over the river; which greatly affects the public, as well as
the defendants. The question to be decided is, therefore, one of
grave moment; because it involves great interests and rights in
Massachusetts, and possibly, principles which may affect the
prosperity and convenience of other densely populated
communities.

															The value of property on the part of the plaintiffs has been
stated, here, to be $500,000. Their bridge, costing originally
about $46,000, has grown into this importance, from the large
annual income, having yielded to the proprietors, as the plaintiffs
state, over $1,200,000; and advanced from 100 l. a share, to
$2000.

															The question in one form is, has the commonwealth so parted with
its sovereign right over this river, and vested it in the
plaintiffs, that they shall continue these exactions, and the
public be without further accommodation, whatever may be the
inconveniences, until their charter expires; and for ever after, if
the plaintiffs have the right to the ferry, as they contend; for
upon their view of the case, the ferry will revert to the college,
and the tolls be continued, after the charter of the bridge company
expires. If the people of the commonwealth have thus parted with
their sovereign rights to corporators, and are thus tied down, so
that new ways cannot be opened for their accommodation, it is
matter of profound regret.

															The learned counsel for the plaintiffs, in opening the case,
seemed studious to have it understood by the court, that the actual
parties in interest, are the plaintiffs and the commonwealth; and I
have no objection to this view of the case; for the public
interest, I agree, far transcends in importance the property
involved. The public, therefore, may be said to stand on one side,
and the plaintiffs on the other. On one side, then, are the rights
to private property, sacred and inviolable, so far as they can be
established; but claimed in the form of a burdensome tax on the
public, and therefore, entitled to no favor beyond strict right. On
the other, stands the public, complaining that they are the
tributaries to this great stock of private wealth, and subjected to
inconveniences still more burdensome, from the want of suitable
accommodations for intercommunication across the river, if this
bridge is to be shut up; and denying that such claims of exclusive
right can be justly or lawfully set up by the plaintiffs. This
public, in the argument, has been represented as devoid of natural
justice, selfish, avaricious, tyranical.

															Some things are certain, in this conflict of opinion. We all
know that the sole control and power over this navigable water, was
once in the public. It was theirs, and how far have they been
divested of it? If it has gone out of the public, and is in the
plaintiffs; they must show to what extent, and show it clearly; for
such rights, as I shall prove, do not pass by presumption, but upon
some decided expression of public assent. The loss of tolls, which
has been earnestly dwelt upon, has no tendency to prove it. The
great increased value of the bridge, has no tendency to prove it.
The severe hardship, which has been a prominent feature of the
argument, does not prove it. All these matters are by no means
inconsistent with the right to establish other ways across the
river; and therefore, only prove that the plaintiffs are making
less money, not that their rights are invaded.

															I will then examine their allegations in the bill, and the
arguments by which they claim to establish their conclusions. I.
They set up an exclusive right to the travel between Boston and
Charlestown, come from where it may. 2. They aver, that the act of
1828, under which the defendants claim, is incompatible with, and
repugnant to, their vested rights, and doth impair the obligations
of contract; and is, therefore, void, by the constitution of the
United States. 3. They aver that the legislature is restrained from
revoking or annulling its own grant, or divesting title, except
where it takes property for public use; and then it can only do it
under the provisions of the bill of rights of the commonwealth,
which requires, that compensation shall be made in such cases; and
they further aver, that their property is taken, and no provision
for compensation is made, and therefore, the act of 1828 is
void.

															The case has been chiefly argued under the second and third
heads. The first raises a question under the constitution of the
United States. That instrument provides in the fifth amended
article, that no state shall pass a law impairing the obligation of
contracts. The plaintiffs call the act of 1785, under which they
claim, a contract; and argue, that the act of 1828 impairs their
grant, and as it is done by legislation of the state, the act of
1828 is void. The second raises a question under the tenth article
of the bill of rights of Massachusetts; a question very proper for
the courts of Massachusetts; but as I shall contend, not brought
here by this writ of error; but finally settled there, and beyond
the reach of this jurisdiction, as the bill of rights does not, and
cannot, constitute any part of the act of 1785, and therefore, is
no part of the supposed contract. These two issues do not entirely
harmonize in another respect. One denies absolutely the right to
take for public use, the property of the plaintiffs, because the
state cannot, even in the exercise of its eminent domain, divest
this right of property. The other admits the right to take for
public use, by making compensation. I shall examine both, and the
arguments urged in support of them.

															To make out these issues, they contend: 1. That they are the
grantees of the college, in and to the ferry between. Boston and
Charlestown.

															2. That the state authorized the erection of their bridge, by
the act of 1785; in which there is an implied covenant not to
divert the travel, by new ways. 3. That these two titles vest in
them a control over Charles river, to exclude injurious
competition, which right they hold to be irrevocable; but if
revocable, then the act which authorizes the interference must
provide compensation for all loss occasioned by the diversion of
travel.

															In examining these positions, I shall-1. Deny that they are the
grantees of the college, or have any interest in the ferry. 2. I
shall deny that they have any covenant or engagement, express or
implied, by the act of 1785, authorizing them to claim damages for
a diversion of travel by a new and authorized way; and shall also
attempt to prove that no legislative body can perpetually alienate
its sovereignty in regard to making ways for the public
convenience; so that a new way may not, at any time, when the
public exigency demands it, be laid over any property whatever,
whether belonging to individuals, or to corporations created by
legislative acts, and whether it be real estate or a franchise,
unless the state has agreed, in express terms, to exempt such
property. 3. I shall maintain, that the power to provide ways for
the public, resides, of necessity, always, in the commonwealth; is
part of the sovereignty; and all property is held subject to the
exercise of that right; which is a condition annexed to all title
to property, whether derived from the state, or from individuals.
4. I shall maintain, that taking property in pursuance of this
sovereign right, is not, in itself, an act impairing the obligation
of contracts, but consistent with it; for the property is held
subject to this right; and all the party can demand, is
compensation, under the bill of rights. 5. I shall maintain, that
this court has no jurisdiction over the question of compensation
for property taken for a way; unless the party can show that he
holds it under the state, and the state has expressly agreed not to
take it for that purpose, without providing compensation; for in
all other cases, the party relies on our bill of rights, and this
court is not the tribunal to expound that instrument.

															In maintaining these positions, I am constrained to examine most
of the grounds assumed in the very elaborate argument of the
opening counsel; though I have a conviction which I cannot
surrender, that all this labor upon the ferry will be a useless
effort, for the plaintiffs can never succeed in establishing any
kind of equitable or legal claim to it. Following, however, the
order designated, I will first look to this ferry, and inquire-1.
What rights belonged to the ferry? 2. Are these rights vested in
the plaintiffs? 3. If they are, do they tend to establish the claim
now set up over the waters of the river?

															This ferry lies in grant, and we must go to the ancient colonial
ordinances, to ascertain its extent, and the probable meaning and
intent of the colonial government, which is to be gathered from
them. They are as follows:--

															Orders relating to Charlestown ferry, extracted out of the old
book in the council chamber, Anno 1630. It is further ordered, that
whosoever shall first give in his name to Mr. Gouvernour, that he
will undertake to set up a ferry between Boston and Charlestown,
and shall begin the same, at such time as Mr. Gouvernour shall
appoint, shall have one penny for each person, and one penny for
every hundred weight of goods he shall so transport. Page 65.

															1631. Edward Converse hath undertaken to set up a ferry betwixt
Boston and Charlestown, for which he is to have two pence for every
single person, and one penny a piece, if there be two or more. Page
80.

															1633. Mr. Richard Brown is allowed by the court to keep a ferry
over Charles river, against his house, and is to have two pence for
every single person he so transports, and one penny a piece, if
there be two or more. Page 105.

															1635. It is ordered, that there shall be a ferry set up on
Boston side, by Windmill Hill, to transport men to Charlestown and
Winnesimet, upon the same rates that the ferry-men at Charlestown
and Winnesimet transport men to Boston. Page 150.

															1637. The ferry between Boston and Charlestown is referred to
the governor and treasurer, to let, at forty pounds per annum,
beginning the first of the tenth month, and from thence for three
years. Page 204.

															1638. Edward Converse appearing, was admonished to be more
careful of the ferry, and enjoined to man two boats, one to be on
the one side, and the other on the other side, except the wind were
so high that they were forced to put four men to man one boat, and
then one boat to serve, only he is enjoined to pay Mr. Rawson's
fine, and so is discharged. Page 223.

															1640. Mr. Treasurer, Mr. Samuel Shepherd and Lieut. Sprague have
power to let the ferry between Boston and Charlestown, to whom they
see cause, when the time of Edward Converse is expired, at their
discretion. Page 276.

															1640. The ferry between Boston and Charlestown is granted to the
college. Page 288.

															Such are the principal acts or ordinances of the court of
assistants, and the general court, in regard to this ferry; and I
shall ask the court to gather the intent of these public
functionaries from this record, and the contemporaneous
history.

															In 1630, the colony, under the distinguished, and I may say,
illustrious, John Winthrop, governor, came over; and not being
satisfied with Salem, where their predecessors had located, they
came up to the head of the bay, or to what is now the harbor of
Boston. Here they found the peninsula of Charlestown, formed by
Charles river on the west and south-west, and Mystic river on the
north-east, projecting into the harbor from the northwest to the
south-east; and the peninsula of Boston projecting towards it from
the south-west to the north-east, and formed by Charles river on
the north and west; which spreads above the point into a large
basin, discharging itself between these peninsulas and the bay or
harbor of Boston, on the other side. Winthrop, with his friends,
occupied these two peninsulas; and in Boston, was established under
him, the colonial government of the company, which, in truth, was
only a company of adventurers in trade and speculation, so far as
the charter went. Out of this humble beginning, has sprung the
commonwealth, and, I might almost say, this federal government
itself. Thus situated, intercommunication between these two places
was indispensable; and hence it is, that while the smokes of only a
few log cabins ascended from the spot where a great city and a
large town have since risen up, the subject of a ferry came thus
early under consideration. And in giving construction to these
simple ordinances, it is a fair inquiry, whether the colonists were
providing for present emergencies-means suitably adapted to that
end; or were, as the plaintiffs, contend, making a perpetual
exclusive grant of the right of travel over Charles river, for all
time to come.

															The first act, in 1630, makes no grant to any one, but proposes
to have a ferry 'set up.' In 1631, a ferry was set up by Edward
Converse, and the toll established. In 1633, Richard Brown is
allowed to keep a ferry over Charles river, against his house,
&c. Here is the first evidence of a specific location, 'over
the river against his house;' that is, what they call a ferry, was
over or across the river, from bank to bank, opposite to Brown's
house-a way merely. In 1635, a ferry was set up from Windmill hill,
in Boston, to Chelsea; and another from Boston to Charlestown, to
run on the same line or way as the one already set up, only it was
to belong to Boston, instead of Charlestown. Thus, one ferry was
granted upon another; if these ordinances are to be treated as
perpetual grants, and if the word ferry carries a franchise,
then one franchise upon another. They show rather what is intended
by the words set up , and that they simply authorized the
running of a boat from place to place. In the first act, any person
giving in his name, was to set up a ferry; Converse did set it up.
The thing set up, then, was not by public act, but by individual
act. This shows the limited sense in which the word ferry is used.
After the location, in 1833, it is called the ferry . In
1637, the ferry is referred to the governor and treasurer to let.
Mr. Savage testifies, that he had seen the original, or what he
believed to be such, of a memorandum of agreement, or lease, in
this year, signed by Converse, which begins thus: 'The governor and
treasurer, by order of the general court, did demise to Edward
Converse, the ferry between Boston and Charlestown, to have the
sole transporting of passengers and cattle from one side to the
other, for three years,' &c. Now, the demise is of 'the ferry
between Boston and Charlestown,' but he is to have the sole
transporting, &c. The term ferry , as then understood
(for this instrument is in the handwriting of the governor), did
not carry any sole or exclusive right to travel and transportation;
but it was necessary to insert other strong and express terms, to
convey that right. This is another proof that the word had not the
enlarged signification now given to it. In 1640, the treasurer, Mr.
Sprague and Mr. Shepherd, were authorized to let the ferry. Thus,
far, there had been but two kinds of action on the part of the
colony; first, to establish a ferry, and second, to lease and
regulate it. There were plainly no privileges or exclusive rights
appended to it, but they speak of it as a thing to be set up by
another; and when leased, they gave for a limited period, certain
well-defined privileges to go with it; but those privileges were
not embraced in what was called the ferry, but stood separate and
distinct from it, and were at an end with the lease. In the same
year, 1640, the record says, 'The ferry between Boston and
Charlestown is granted to the college.'

															This is the charter-the whole title of the college. What, by
fair construction, is granted? The ferry-nothing more-the thing set
up. No privileges such as are specifically enumerated in the lease
of Converse-no line of travel, such as is now claimed-no covenant
not to divert travel, or not to establish other ways, or not to
impair the income. There is nothing which looks at such privileges.
It is a ferry-a naked ferry. What is a ferry? All the books,
Tomlin, Dane, Woolrych, Petersdorff, &c., define it to be a
highway, and the word, ex vi termini , means no more. The
term ferry , therefore, in and of itself, implies no special
privileges, such as are often connected with a ferry by special
grant or prescription. The colonists so understood it; and in
making a charitable gratuity to the college, had no purpose of
placing the control of the ferry, or the waters of the river,
beyond their reach. The income, they doubtless meant, should go to
the college; but they actually retained the possession and
management till 1650, and always determined the rate of tolls, and
how the public should be accommodated.

															The doctrine of ferries, as found in the English books, and
applied to this case, is full of confusion and uncertainty; so much
so, that the plaintiffs have, under it, varied and remodelled their
claims of right; reducing them from the whole river, to the travel
between Boston and Charlestown; and before I have done, I shall ask
them again, what is the extent of their claim, and where the
authority which defines that extent? Let us look at the cases, and
see how the doctrine stands.

															1. The old class of cases, in which is found the doctrine that
'you cannot impair my franchise or my ferry,' and 'I may exclude
all injurious competition;' and which has been many times repeated
in the argument, with great apparent approbation; asserts rights
which I will show cannot be maintained in England, or anywhere, at
this day; the monopoly is too bold for even a government of
privileges. There was, therefore, a necessity for narrowing down a
doctrine so repugnant to all improvement, and so inconvenient to
all who had occasion to travel. The principle was, if one owning an
old ferry, could show that a new ferry or way, however remotely,
diverted travel, or caused a diminution of tolls, an action would
lie, and the new ferry or way was held a nuisance. This gave rise
to the doctrine set up in Yard v. Ford , 2 Saund. 172, Blissett v. Hart , Willes 508; and in the case of Sir Oliver Butler , 3 Lev. 320. Here, the distinction was
taken, and appears since to have been adhered to, that one setting
up a ferry, without license from the king, would be liable for any
injury happening to an old ferry thereby; whereas, if he had first
obtained a license, he would not have been liable. Those who acted
under a license, were placed on a different footing from those who
acted without, although the license was procured without paying any
compensation to the old ferry. A careful analysis of these cases
will produce this result. The conclusion then is, that under a
license, granted after an ad quod damnum , a ferry may be
continued, though injurious, so far as to entitle the owner of an
old ferry to damage, if no license had been granted. The cases of Blissett v. Hart , and Sir O. Butler , fully
maintain this conclusion. The ad quod damnum , which gives,
of course, no damage, has been manifestly used to evade the
rigorous old rule, and to narrow down the franchises of ferries,
markets, &c., under a return upon such writs, that new ferries,
or new markets may be granted, because the public need them, and
the old ones will not be greatly injured thereby. The reporter, in Butler's Case , alleges, that the new market was granted,
because the public convenience demanded it. It is, I agree, absurd
to return no damage, when there is damage. But if this be not so,
why is a license a protection? for if a ferry is, where it does no
injury, then it needs no protection. The idea of protection,
therefore, necessarily implies, that without the license, the party
would be liable, because he does injury. The process of ad quod
damnum and license, is, therefore, used as a shield against the
liability, and to cut down this kind of franchise.

															Next came the doctrine in Tripp v. Frank , 4 T. R.
666, which struck more effectually at the doctrine of the old ferry
franchises, and brought them into comparatively circumscribed
limits. The plaintiff, claiming all the travel from Kingston to
Barton on the Humber, sued the defendant for transporting persons
from Kingston to Barrow, some distance below Barton, on the same
side of the river. The travel from Kingston to Barrow, had usually
passed through Barton, and therefore, went by the plaintiff's
ferry. He prescribed and established his right to all the travel
between Kingston and Barton; and maintained, that under the old
authorities, which forbid the right to set up injurious
competition, or to impair the ferry of another, he was entitled to
damage; for if the defendant had not transported passengers
directly to Barrow, they would have passed over to Barton, in the
plaintiff's boats, and therefore, he lost his toll. His line of
travel, as it is here called, was broken, and a part of it
diverted. But the court nonsuited the plaintiff, on the ground,
that he had only an exclusive right between Kingston and Barton.
They disregarded the circumstance, that his accustomed travel was
lessened, and his tolls diminished. This, therefore, was an
unequivocal inroad upon the doctrine, that one shall not set up
injurious competition against another, or impair his ferry; for it
is undeniable, that the toll was diminished, and the value of the
ferry lessened. The franchise which formerly reached all injurious
competition, was here limited to an exclusive right between the two
towns where the landing places were. This was a most material
modification of the old doctrine; and was so considered in a late
case in the court of exchequer by Baron PARKE.

															The next case of importance, for I pass over many where the
learning of the courts has been put in requisition, is a late case
in the court of exchequer, reported in 2 Cr. M. & R. 432; and
introduced to the notice of the court by the plaintiff's counsel.
Here, again, the learned barons took time to advise and consider
what the law relating to ferries was. After a fresh research, it is
declared, that the franchise consists in an exclusive right between
place and place, town and town, ville and ville; and the
competition must be brought to bear on these points, or it is
lawful. Hence, the defendant was justified in landing a person at
Hobbs's Point, a place intermediate between Nayland and Pembroke,
though near the latter place, and the passenger was going to
Pembroke. This was no infringement of plaintiff's ferry between
Nayland and Pembroke. This is the case, as I remember it from a
hasty perusal. What are we to gather from it? Would a ferry from
London to Southwark, across the Thames, be from place to place,
town to town, or ville to ville, so that the vast population on
each bank could have no other accommodation? What connection have
the arbitrary lines of towns, or cities or parishes, with the
public travel or the public accommodation? From one county to
another, in most of the United States, is from place to place; for
these are the smallest political organized communities in many
states. Two counties may stretch up and down a river, upon opposite
banks, many miles; and is any ferry to have an exclusive franchise,
the whole of the distance, because the two places stretch so far?
This, and all the authorities cited, are only so many proofs of a
constant struggle on the part of the courts, to ascertain what the
franchise of a ferry is in law; and to bring it down to more
limited dimensions than the old cases assigned to it. Am I not
justified, then, in declaring, that the doctrine is manifestly
confused and vacillating; and that the courts, without much seeming
ceremony, have modified the law to suit the temper of the times,
and to appease the just complaints of the public. But if the law is
to undergo change, I prefer it should be in our own courts, and
adapted to our condition. Let it be done here, instead of in king's
bench, or the exchequer.

															This, however, is not the course to pursue, for it furnishes no
safe and sound principle to rest upon. It seems to me, if we
analyze prescription, on which all these English rights rest, for
all the cases of ferries will be found to lie in prescription; we
shall find a ground of interpretation of right, which will be
satisfactory, and show that these cases have no tendency to
establish the doctrine contended for by the plaintiffs. They cite
them to prove that a ferry has, as appurtenant to it, a franchise
which excludes injurious competition from the waters above and
below it. I have already shown, that the term ferry has no
such extended signification; and I will now show, that these cases
do not conflict with that position, and that they furnish nothing
to aid this notion of constructive and implied rights; but every
ferry is limited strictly to what is granted, without the aid of
implication.

															Prescription and grants in writing, differ only in the mode of
proof. The writing proves its own contents, and the extent of the
grant is gathered from the terms employed to express the meaning.
Prescription is allowed to take the place of a writing supposed to
be lost. Equity permits the party to produce evidence, to prove
what he has claimed, what he has enjoyed, and how long; and if the
period of enjoyment be sufficient, the law presumes that he had a
writing which has been lost, that would, by its contents, prove a
grant co-extensive with the proof. In the case of Tripp v. Frank , for example, the plaintiff proved that he had an
exclusive right to transport all travellers passing between
Kingston and Barton. The law, therefore, presumed, that if his
written title could have been produced in court, it would, in so
many words, have given him such an exclusive right. Cases of
prescription, therefore, afford no countenance to implied or
constructive rights; but stand on precisely the same footing as
titles which lie in writing. Usage can never enlarge or diminish
title, for one is not obliged to exercise all his rights, to
preserve them; nor does usurpation, in theory, enlarge right. The
usage only goes to show what the law supposes to have been written.
Before, then, the plaintiffs can use these cases of prescription to
establish implied franchises, they must show that the lost title is
not to be held to be commensurate with the proof; but something is
implied, beyond what is supposed to be written. This they will find
it difficult to accomplish. It follows, from this, if I am correct
in the reasoning adopted, that ferries, eo nomine , have no
particular privileges belonging to them. They are what authors
define them to be, water highways; and each franchise is more or
less extensive, according to the terms of the grant creating it. It
may be very limited or very broad. The confusion in the English
cases, does not arise from any uncertainty in this principle; but
from the uncertainty of proof, where the right lies in
prescription.

															With these explanations, which I fear have been unnecessarily
minute, I come to the inquiry: what was granted to the college? And
I answer, the ferry; the same thing set up in 1681, by Converse;
the way over the river, againt the house of Brown, established in
1633; a road from bank to bank; for this all a ferry over the river
means. It was an accommodation adapted to a few inhabitants in the
wilderness. If the franchise was broader, where does it extent to?
The terms of the grant indicate no privileges up or down stream.
Will the plaintiffs tell us, where their bounds are? Do they know?
Is there any rule of implication which assigns them any privileges
which they can define? If there is, then, I call on them to put
down the boundaries; to show the court the limits. It is not
enough, to show that the terms of the grant, if literally and
strictly construed, may, under possible circumstances, render their
property of little or no value. This only proves they may have made
a bad contract, but has no tendency to establish in them undefined
and unmeasured rights.

															Let it be remembered, that the plaintiffs, in 1792, remonstrated
against the grant of West Boston bridge, alleging that it would
divert half their tolls; and the opening counsel said, they got
compensation for the erection of this bridge, which was from
Cambridge Port to Boston. Again, they remonstrated against Canal
bridge, alleging it interfered with their franchise, and this ran
from Lechmere's Point to Boston. Now they say, their franchise does
not reach either of these bridges, but is limited to Boston and
Charlestown; and the case of Huzzey v. Field , is
quoted to sustain it. This is certainly proof, very conclusive,
that the law had been so uncertain, that the plaintiffs have not
been able to show the extent of their own rights, as they
understand them, or to make uniform claims. Understanding the old
cases as I have represented them, they asserted the right to arrest
all injurious competition; and as the English courts have cut down
the privilege of franchise, from time to time, so their claims have
diminished, till they lie between Boston and Charlestown alone.

															But it is said, the franchise must be reasonable; and what it
reasonable? They deemed it reasonable to assert an exclusive
privilege, and to deny the right to open any new ways over the
tide-water of Charles river which might divert any travel which
would otherwise reach them. Opposition to all new bridges has been
deemed reasonable. But why is any enlargement of the grant
reasonable? What you give to the ferry, you take from the public;
and the public cannot spare it, without inconvenience. In a word,
is it reasonable, or right, to traverse the regions of conjecture
in this matter? To make laws which shall assign boundaries to this
franchise, when the plaintiffs can show no manner of title to what
they set up?

															They urge that Warren bridge is a clear interference, because it
takes away their tolls. So is West Boston and Canal bridges, for
the same reason; for the travel would go over the plaintiffs'
bridge, if these competitors were away. The proof is no more
decisive in the Warren, than in the other bridges. The diversion of
travel is not evidence of wrong. The English cases cited, clearly
show that; see Tripp v. Frank . The wrong, if any,
consists in invading the plaintiffs' grant. And I again ask them,
if they affirm, as they do, that we are on it, to point out its
bounds. Show us some certain evidence that we are trespassers; you
once contended that West Boston bridge would be a nuisance, because
it would, as it did, take half your travel; you urged the same
argument against Canal bridge, which had the same effect; but you
now admit them both to be lawful, because they are not on your
franchise. This admission not only proves that you are uninformed
as to the rights you claim, but that a great portion of your
accustomed travel may be lawfully diverted. I, therefore, again
repeat, that the diversion of travel is, of itself, no evidence of
a trespass on your rights. You must, therefore, produce some other
proof that your franchise reaches our bridge, than the loss of
tolls. You do not show it by the terms of the grant, nor by any
established rule of construction, which authorizes such an implied
right. It is not the business of courts to make or alter contracts,
but to interpret them. Is there anything in the words, 'the ferry
between Boston and Charlestown is granted to the college,' which
looks like granting an exclusive control over Charles river, or any
part or portion of it, except the way or line of that ferry? I
shall hereafter adduce conclusive proof to show, that in England,
contracts of this character are rigidly construed in favor of the
public, and against corporators. No countenance is given to
implication, beyond what is made manifest by the clearest and most
explicit terms. Stourbridge Canal Co. v. Wheeley , 2
Barn. & Ad. 792. The franchise of the ferry, then, which has
been interposed against all improvements across Charles river, when
brought to the scrutiny of law, will be found to be a very limited
right, confined to the path of the boats across the river.

															This reasoning is strongly corroborated by the condition of the
colony, at the time of the establishment of the ferry, as I have
already suggested. As a further proof of public sentiment, the
colonists, in 1641, almost simultaneously with the grant to the
college, and before it took effect (for the college was not
incorporated till 1650), passed an act prohibiting all monopolies,
except for inventions. The great and wise policy of Massachusetts,
in respect to free highways, was established in 1639; and with
modifications, has been continued to this time. Anc. Ch. 126, 267;
Laws of Mass. 178, ch. 67. Under these acts, a power to construct
free ways has at all times been exercised so largely, that
Massachusetts owes to it the best roads that can be found in any
state in the Union; and they have, at all times, been established,
regardless of turnpikes, bridges, canals, railways or any other
improvements. The consequence has been, as is well known, that many
of the turnpikes have been abandoned to the public. Such has been
the action of public sentiment, and such its results; and this is
the first instance in which the right to establish new ways has
been questioned.

															All these considerations lead to one conclusion, which is, that
neither the language of the grant, nor the grant current of public
opinion, give any countenance to the claims set up by the
plaintiffs, founded on this ferry, for an exclusive franchise
extending up and down the river. The late lamented and
distinguished chief justice of Massachusetts, in his opinion, in 7
Pick., in this case, expresses his convictions strongly on this
point; that the ordinance did not give an exclusive right between
the two towns, to the ferry and in construing it, that the
contemporaneous history ought to be considered, as it tends to
explain the probable intent of the colony.

															If, then, the court confine themselves to the language and the
existing circumstances, both of the country and the college, at the
times of adopting the several ordinances, they will probably arrive
at the following conclusions, as distinctly indicated in the case.
The colonists meant to establish a ferry, suited to the then
emergencies of the country; but not to establish a broad franchise.
They needed a public seminary for the education of youth, and
found, by the income of this ferry, they could aid this object.
They, therefore, meant to secure the revenue of the ferry, as a
gratuity to the college, but nothing more. And while they did this,
they intended to retain in themselves the unqualified right to
control, manage, regulate and govern the ferry at pleasure. To make
the income much or little; and to make just such provision for the
public travel as they might deem expedient. This is the conclusion
which is forced upon the mind, by reading the numerous acts upon
the subject. The college was then esteemed the child of the
government; and that government manifestly considered itself
standing in that relation, with the power to exercise parental
authority. Now, what effect the court will give to this state of
things, in law, remains to be seen; but there is little difficulty
in understanding the actual relation of the parties.

															One thing, I apprehend, however, is clear; namely, that neither
the ordinances, nor the history, afford any evidence of an intent
to create such a franchise as is now claimed. If, therefore, the
plaintiffs have this ferry right, it cannot aid their present
claims. They grasp at too much-all the river; or if not, they can
assign no limits, either by the law or the facts. The public is not
to be deprived of its sovereignty over a navigable river, upon such
indefinite, uncertain pretensions.

															But suppose, we are erroneous in all this reasoning, in regard
to the franchise of ferries; then I propose another objection for
the solution of the plaintiffs. The doctrine applicable to ferries,
belongs to ferries alone, among highways. It is feudal in its
origin, and has never been applied to turnpikes, bridges, canals,
railways, or any other class of public ways. I have attentively
observed the progress of this case, and the learning and laborious
research of the plaintiffs brought to its aid. No books, ancient or
modern, seem to be left unexplored. Even foreign periodicals, fresh
from the press, are on the table; and yet they have shown the court
no case where this doctrine which they set up, has been applied to
any class of ways, except to ferries. The Chesapeake and Ohio
Canal Company v. Baltimore and Ohio Railroad Company , in
Gill & Johnson, has been quoted; but surely not for the purpose
of showing an exclusive franchise, for these works are allowed to
run side by side, actually infringing upon each other, though
direct competitors. England is covered with canals, railways,
bridges, &c.; but not a case has been adduced, applying this
doctrine to them; and the honor of extending a feudal right to such
works is saved for the courts here, if it is to be maintained at
all. These feudal rights are well known to have originated in the
very spirit of cupidity; which aggregated to itself all privileges
which increased the mass of wealth in the feudal lords, at the
expense of the public. These rights grew up to be law, from the
force of circumstances; but it is hardly worth while, at this day,
to enlarge such provisions, or to push ourselves ahead of Great
Britain, in giving sanction to them. Under this notion of special
privileges, the same doctrine extended to mills, markets, &c.
Whoever had a market or a mill might keep down injurious
competition. We have clearly thrown the law as to markets and mills
overboard; for no such privileges exist in Massachusetts: and the
doctrine of constructive franchises in ferries ought to follow. It
is emphatically the doctrine of privilege against public right; I
speak of those vague, indefinite appendants and appurtenants which
are said to belong to ferries, by construction and implication; not
of what is granted in terms, or by necessary and irresistible
implication. This doctrine ought not to be received, unless it is
the imperative law of the land, and can be shown to be so, beyond
all doubt; and this the plaintiffs have failed to establish.

															I come now to a very important inquiry in regard to this ferry.
Are the plaintiffs the owners of the right, be it what it may? If
they are not, it is a question of no importance, whether the
franchise is broad or narrow. The facts here, will, if I do not
mistake their character, relieve the court from all embarrassment.
I agree with the plaintiffs' counsel, that the commonwealth has the
power and the right to take any property for public use; and
therefore, also agree with them, that she had a right to take the
ferry for the site of a bridge. How could the plaintiffs controvert
this proposition, when their bridge is on the ferry ways, and the
ferry path under it? But it by no means follows, if the
commonwealth had the right to take for the public use a franchise,
that she has granted it to the plaintiffs. This must depend on
proof. Let us see, what the franchise is claimed to be, and what
has been done with it.

															It is asserted by the plaintiffs, that the franchise was an
exclusive right to transport persons, &c., between Boston and
Charlestown. This is an interest issuing from the realty. It is a
possessory right, so far as the right to exclude transportation
across the river goes; though I am aware that it is incorporeal. I
seems to me, therefore, by the laws of Massachusetts that it could
only be transferred by deed. Anc. Ch. 18; Laws, 1783, ch. 37.
Courts of equity have no power to construe away these provisions.
But the plaintiffs have no deed. Again, they have no vote or act of
the college corporation, or any of its officers, implying any
purpose or thought of conveying this interest. Again, the
plaintiffs produce no vote or act of their own, evincing any desire
on their part to become the owners of the ferry. The petition for
their charter is among the papers, and it does not even name the
college; but passing over its head, as not worth regarding, it asks
for the right to build a bridge 'in the place where the ferry is
now kept.'

															There is nothing in the cases to show, that the thought of
owning the ferry, ever entered the minds of the petitioners. They
had no difficulty in demanding a grant of the ferry-ways
themselves, for the site of a bridge, without proposing any
compensation for it. Those great and sacred private rights, which
now figure so largely in this case, seem to have been no serious
obstacle to the introduction of a more convenient way; but a change
of interest has, probably, wrought a change of opinion.

															There is, then, no evidence of any purpose on the part of the
college to sell, or of the plaintiffs to buy; and if the property
has been transferred, it has been done, without the act or the
assent of either party. This would seem difficult, if not
impossible; still, it is strenuously insisted upon, because the act
of 1785 requires the plaintiffs to pay out of their tolls
200 l. a year to the college. This, it is said, is a good
consideration, and draws after it, in equity, the title to the
ferry franchise. The conclusion is not apparent from the premises.
If being required to pay 200 l. a year, makes them the owners
of the ferry; then why is not the corporation of West Boston bridge
an owner, for they are required to pay 400 l. a year to the
college? Canal bridge would also come in for a share, as they too,
if my memory serves me, were required to pay something. The
plaintiffs would probably object to these copartners. But is there
any foundation for this pretended consideration? Who has paid it?
Let the facts answer! The legislature granted a toll for passing
the bridge, so liberal, not to say extravagant, that for an outlay
of $46,000, the plaintiffs have received a return of over
$1,200,000, as they admit; and their shares, which cost
100 l. , have been sold for $2000. The 200 l. a year
have, therefore, been paid by a tax upon the public travel,
collected by the plaintiffs, under the authority of the
legislature. The tolls appear to have been set very high, to cover
this expense, and to give the plaintiffs an early indemnity; as the
public might have occasion to make new ways, and diminish the
amount of travel. This contingency was doubtless in view, when the
rates were established. There can, therefore, be no reasonable
ground for saying the plaintiffs have ever paid a cent of
compensation. It would be extraordinary, if they, without and
conveyance, or any purpose to convey, and without any
consideration, could set up a title to a valuable property.

															But they suggest further, that the state has conveyed the ferry
franchise to them. The act of 1785 will be searched in vain for the
intimation of any such purpose. Moreover, the state has no power to
take the property of one, and convey it to another. They may
condemn so much as is necessary for public use, but nothing more.
To test this matter, suppose, the bridge were taken away, can the
plaintiffs set up a ferry? I think no one can hesitate what answer
to give. They are authorized to maintain a bridge, and no other
kind of way. The conclusion of he matter is, that the legislature
authorized the plaintiffs to set up a bridge upon the ferry-ways,
and took upon themselves to quiet the college, which neither
assented or dissented, but relied on the commonwealth, which had
always been its great patron and protector, that eventual injustice
should not be done to it.

															The learned judges, three to one, reached, substantially, this
result, in Massachusetts. It is, therefore, plain, that the
plaintiffs are not grantees of the ferry, and have not, and never
had, any interest therein. The ferry franchise, therefore, whatever
it may be, is of no importance to the decision of this case, as the
plaintiffs can claim nothing under it. The plaintiffs having failed
to show any contract in regard to the ferry, and the legislature
having passed no law touching the ferry, for the act of 1828 does
not name or allude to it; nothing has been done by the state to
impair the obligation of a contract, or to violate the constitution
of the United States. The discussion, however, may not be wholly
useless, as some principles have been examined, that are applicable
to other parts of the case.

															I shall now proceed to examine the act of 1785, under which the
plaintiffs acquire the right to build the bridge, and all other
rights which they have. This act is so barren in those provisions
which are necessary for a feudal franchise, that a great effort has
been made to build up a claim upon the vague doctrine of ferry
rights. Nothing is more reluctantly surrendered than inordinate
profits. The provisions of this act are, substantially, as follows:
§ 1, creates a corporation: § 2, provides for its organization: §
3, gives a toll for forty years: § 4, relates to the dimensions,
&c., of the bridge: § 5, gives 200 l. a year to the
college: These are all the provisions.

															They had a right granted for what they asked, namely, to erect a
bridge in the place where the ferry was then kept, and to take toll
of such as passed over. This is all the franchise provided for in
the act; there is not a word about any other rights and exclusive
privileges. Nothing restraining the power to make new bridges; no
covenant, that there shall be no diminution of travel, or diversion
of it; no line of travel guarantied-nothing said of the travel
between the two towns; not a word about making compensation, if any
of their property should be taken for public use. You will look in
vain for any such provisions; and if the plaintiffs have any such
rights, growing out of this act, they must be implied, for they are
not secured by express stipulations. Here, the question recurs,
what is the rule of construction applicable to such acts? I shall
ask attention to but one authority: the case of Stourbridge
Canal Co. v. Wheeley , 2 Barn. & Ad. 792, to which I
have referred. Lord TENTERDEN says: Such an act, that is, an act of
parliament incorporating the plaintiffs to make a canal, is a
bargain between the public and the adventurers, the terms of which
are contained in the act. He affirms, that the rule of construing
such acts is well established to be in favor of the public, and
against the adventurers; which is exactly opposed to the rule so
elaborately laid down by the learned counsel in this case. His
lordship distinctly and emphatically declares, that whatever is
doubful or ambiguous, or whatever is capable of two constructions,
must be construed favorably for the public, and against the
adventurers. This case seems to run on all four with the one under
consideration, in many of its features-both sets of plaintiffs are
corporators, created by acts of legislation; both own ways, and
each claims a franchise. The general characteristics are,
therefore, alike; and clearly the rules of law applicable to both,
and regarding the construction of the charters, ought to be alike;
and if so, the plaintiffs can take nothing but what is clearly and
distinctly granted to them, either in words, or by plain and
necessary inference. The question, then, arises, is it a necessary
and irresistible inference, from the terms of this act-a thing so
plain as to admit of no doubt-that the legislature did intend to
grant to the plaintiffs a roving franchise, to which they can
assign no limits; which, in 1792, was above West Boston bridge, but
is now limited to Boston and Charlestown? If the plaintiffs cannot
give body and shape to the thing to be inferred, if they cannot
assign to it limits; in a word, if they cannot tell what it is; how
can it be said to be either a plain or a necessary inference? It
can neither be the one nor the other; and the very doubt thrown
over it, forbids the making of the inference, according to the
principles so clearly asserted by Lord TENTERDEN. Implication
cannot go beyond what is certain and irresistibly necessary;
especially, where an act is capable of an obvious construction,
consistent with its general purpose, without such implication. This
act is of that character. The legislature granted the right to
construct and maintain a bridge, and to take tolls for forty years;
but this right of taking toll does not go beyond the privilege of
demanding it of such persons as voluntarily pass over. This is all
that is guarantied, and these rights have not been touched. Whether
another bridge should be erected, so near as to divert the travel,
is a matter which they did not bind themselves not to do, but
retained in themselves the right to exercise their discretion, as
they pleased; in case, in their judgment, the public needed new
accommodations. They asserted the right, and diverted nearly half
the travel, when West Boston bridge was set up; again, when Canal
bridge was set up; again, when Prison Point bridge was set up; and
lastly, when Warren bridge was erected.

															The commonwealth has, nevertheless, exercised this power
sparingly; and only when pressed by strong emergencies. The
plaintiffs asked, in their petition, to be indemnified for their
expenses, and they have been suffered to go on, until they have
been remunerated in a most princely manner. The commonwealth
having, at all times, the right to set up interfering bridges, has
foreborne to do it, in a most becoming spirit of liberality, and
little merits the denunciations now loaded upon her. Such seems to
me to be the plain import, and the obvious meaning of the act, and
no forced construction or implication is necessary, to ascertain
the rights of the parties. The plaintiffs seem to suppose, a
diversion of travel is an invasion of their property. This is a
mistake. They have no property in travel, for nobody is obliged to
travel over their bridge; and they now admit, that bridges may be
erected anywhere, except between Boston and Charlestown, however
much travel they may divert. They affirm that a grant of toll for
forty years means nothing, unless it be absolute and unconditional,
securing the travel. Might it not be granted on the express
condition that other bridges should be erected, if deemed
expedient? Not granting away a power, is equivalent to retaining
it; and the legislature never surrendered the right to build new
bridges. The plaintiffs have, therefore, enjoyed their privileges,
subject to this right. Their tolls have been diminished; but
neither by wrong, nor any violation of their rights under the act;
nor has any injustice been done to the corporation, as I purpose to
prove, before I leave this point.

															But they again claim a reasonable construction. Why is not this
construction reasonable? The plaintiffs make less money; but are
they not indemnified? Would it be more reasonable, to permit them
to exact an endless tribute, and to subject the public to other
great inconveniencies and delays in their business? What were the
large tolls granted for, unless to give a speedy indemnity, that
the public might have new accommodations, when needed? What would
be the plaintiffs's judgment of what is reasonable? They told you,
in 1792, it was an unqualified control over all the important
portion of the river. You must not, they said, impair our bridge.
Any construction would be deemed unreasonable, which should
diminish the toll.

															Again, it is said, there are stockholders who are great
sufferers, having bought in at $2000 a share. I will not deny this,
for I am uninformed as to the holders of stock; but I will prove
that this consideration is entitled to little weight, even in
equity; for I will show that the commonwealth gave the most
unequivocal notice, to all persons, of her construction of the act
of 1785; and when she renewed it in 1792, she placed upon record a
solemn and public legislative declaration, that she acknowledged no
such rights vested by that act, as are claimed here. In 1792,
Oliver Wendall and others petitioned for leave to erect what is
called West Boston bridge, about a mile above the plaintiffs'
bridge. The plaintiffs sent in their remonstrance, objecting, that
it would impair their property, by reducing their tolls one-half.
The petition and remonstrance were committed to a joint committee
of both houses, who heard evidence and counsel in behalf of the
parties; and after a most full investigation, they reported in
favor of the new bridge. This report was so amended by the two
houses, as eventually to contain all the provisions of the act of
1792; and in this form, is was accepted by both houses. In this
report, thus adopted as the basis of this law, is contained this
declaration:-'There is no ground to maintain, that the act
incorporating the proprietors for the purpose of building a bridge
from Charlestown to Boston, is an exclusive grant of the right to
build over the waters of that river; but considering the erection
of Charles River bridge was a work of magnitude and hazard, and
that great benefits have arisen to the public from the success of
that enterprise,' &c.; 'it is reasonable and proper, that a
further time of thirty years be granted to said proprietors, to
receive and collect, for their benefit, the toll now established by
law for passing said bridge,' &c. The legislature being
apprised of the broad claim set up, on the trial before the
committee, took this occasion to say, in connection with the
extended grant of tolls, that the plaintiffs had no such rights;
and that in giving the extension, they meant to give countenance to
no such thing, but simply to reward, most liberally, a commendable
spirit of enterprise. When the charter of the defendants was
granted, in 1828, the forty years had expired; and the plaintiffs
had entered upon the extended period provided for, by the act of
1792, or the charter of West Boston bridge company.

															This declaration, and the passage of this law, being concurrent
acts, the meaning of the legislature cannot be mistaken. They put
their explicit denial, upon the right to raise implied covenants
not to erect new bridges; and declare, that they extend the right
of tolls, because, among other reasons, the plaintiffs had no such
exclusive privilege. The plaintiffs have accepted the provision for
them in the act of 1792; claim the benefits of it, and plainly
ought to be bound in equity by this exposition. It was a distinct
notice to all persons, who were, or might be, concerned in the
property, that the denial of the right of the state to make new
bridges, would not be regarded; and whatever might, by
construction, be their privileges, under the act of 1785, its
renewal in 1792, was on condition, that no such pretension against
the power of the state should be set up.

															It has been said, that this is only found in the report, and is
not, therefore, obligatory. But to this, I answer, that the report
was the subject of distinct, deliberate legislation, in both
branches. It was accepted by both, acting in their constitutional
capacity; it is part of the records and files. The law is only an
echo of it, embodying the matter in the accustomed forms of
legislation. We offer this report, not to explain away or to alter
any provisions of the act, but to refute an inference made on
presumption; to negative an implied engagement which is attempted
to be enforced; to show that the legislature did not mean what the
plaintiffs attempt to force upon us by construction; and, most
assuredly, it is competent for this purpose; it is competent to
overthrow a presumption which it positively refutes. It is,
therefore, conclusive upon the plaintiffs; and has the same
restraining effect on their presumptions, that it would have if it
had been embodied in the act. How can they, then, show the effect
of it? The counsel replies, that they do not claim a franchise
extending to West Boston bridge, for they only claim between Boston
and Charlestown; and there is no distinct larger claim set up in
their remonstrance of 1792. If they did not consider the West
Boston project an interference, why did they remonstrate; and why
represent that it would take away half their travel, and ask a
refusal of the grant desired by the petitioners? But suppose, if
you can, that they really did not mean to assert that such a bridge
would be an interference, the declaration, which is an answer to
the remonstrance, only becomes the more pointed and explicit; for
it is then saying, in so many words, you have no exclusive rights
between Boston and Charlestown, and we admonish you of it, and
renew your charter, with the express understanding that you are to
so consider it. View it, then, in any aspect in which it may be
presented, and the declaration still stands unshaken, and cannot be
construed away. It clings everywhere, as a condition of the
renewal, not to be explained away. What right, then, have the
purchasers of stock to complain? They are bound to notice the terms
of the charter, and to regard its provisions; and surely, ought not
to demand relief from an inconsiderate or rash contract, at the
expense of the public.

															But the court has been asked, with considerable emphasis, if the
plaintiffs would have accepted a charter, with power left in the
legislature to erect bridges at pleasure? The answer has already
been given. They did accept it, after all the deliberation they saw
fit to make, and with this unequivocal notice before them. We ask,
in turn, if the legislature would have granted to any company such
privileges as they claim, if the privileges had been set forth in
plain and intelligible language in the act? Would they have given
an exclusive right over the river to any body? The answer is again
at hand. No sooner were such claims set up, than they denied their
validity, and refused to recognise them. They again, in 1807, when
Canal Bridge company was incorporated, renewed the declaration
against them, in a formal manner; and again, when Warren bridge was
established. They have, at all times, earnestly protested against
all such claims. The views of the legislators and of the people are
not doubtful on this point; they have not misled the plaintiffs by
silence, or for a moment favored their pretensions.

															But much is said of the hardship. Their property, which is of
great value, it is said, is rendered worthless; it has been taken
from them and given to others. Here the plaintiffs mistake their
rights, and reason from false premises. They suppose, they had a
property in the public travel, when they had none. There cannot be
any property in public travel, because no one is under any
obligation to pay toll, unless he passes the bridge, and that is an
optional act. If the act of 1785 imposes no restrictions upon the
legislature, and they had a right to authorize the new bridge; then
nothing is taken from the plaintiffs, if all the travel passes over
it. All that can be said is, that while the legislature forbore to
exercise its lawful rights, they made a vast deal of money, by an
exclusive enjoyment; and now they make less, not because anything
is taken from them which was theirs by contract or grant, but
because a lawful competition is set up. Their case of hardship
differs in nothing from those of frequent occurrence.

															Suppose, A. sells to B. a tavern, having a large custom, and
makes conveyance. A. then erects another house near by, and the
custom follows him, whereby B. is ruined. B. has no remedy, unless
A. has covenanted expressly not to do this act. Again, one has a
tavern, store or other place of business, dependent on public
travel for its custom; a new road is established, which diverts all
travel from it, and renders this property worthless; the owner has
no remedy, but must bear the loss with what patience he may. These
are matters of frequent occurrence; and present cases of much
greater hardship than the plaintiffs are called upon to endure; for
they have reaped too rich harvests to be great sufferers. The
owners of real estate on the avenues to their bridge, will, if the
travel is discontinued, or greatly impaired, probably, suffer more
severely than the plaintiffs; but what remedy have they? The
plaintiffs, therefore, if they should hereafter receive less tolls,
will be in no extraordinary position. It will doubtless turn out
that their property is far from worthless, as it may be applied to
other uses. But what if there is hardship? Is that to be relieved,
by making a new contract here, or by altering an old one? Shall the
commonwealth, to relieve the plaintiffs, be made a party to
stipulations that she never entered into? This would be more
unjust, than any losses or inconveniences which can occur to the
plaintiffs. Presumptions got up to relieve hardship, are too often
the parents of the greatest injustice.

															The plaintiffs seem to think it is incredible, that any of the
large privileges which they have enjoyed, should rest on the
forbearance of the commonwealth. They treat the idea that they
should hold anything at her will, as preposterous. To be at the
mercy of the state is absurd; and so irreconcilable with just
reasoning, that it is not to be entertained, in giving construction
to this act of 1785. We must arrive, they think, at any conclusion
but this; though the very terms of the act force us into this
position. Either the state or the plaintiffs have the control of
this river; and whoever has, excludes the other from a sole
enjoyment. In order to free themselves from control, the plaintiffs
would bring the state to their feet, and place her at their mercy.
This would be the measure of justice meted out by their
construction. I will leave it to the court to determine, which
would be the most becoming posture, and which would best subserve
the ends of public justice-to place the plaintiffs at the mercy of
the state, or the state at their mercy. They demand, when they say
they have a right to exclude injurious competition, that the travel
shall be arrested on the north bank of the river, and driven by
circuitous and inconvenient ways over their bridge, and shall, in
addition, pay tribute perpetually; not to indemnify for the
enterprise, but to add to the mass of wealth already accumulated.
If the state is tied down to this burden, be it so; but let us see
decisive proof of it. Let it not be by presumptions or
implications. If the plaintiffs wish for equity, let them do
equity; that is a first principle. Let them frankly admit, that
they had notice of the limited terms on which their act was renewed
in 1792; and not try to shut that all-important fact out of
sight.

															The honor of the state is untarnished, and her reputation fully
vindicated. There has been much false rumor in this matter; much
mistake and unjust imputation. The state has made no attempt to
resume her grants, or to seize private property, by violent and
revolutionary measures, for public use. She has not acted
arbitrarily, illiberally or ungenerously toward any one; but, on
the contrary, has forborne to use her lawful power, until she saw
those who had done a valuable public service, not only reimbursed,
but enriched in a manner surpassing all ordinary acquisitions. She
then listened to the demand of the public for further
accommodations, and not till then. There is no blot upon her
escutcheon, nor stain on her garments, in this matter. In proof of
this, I fearlessly assert, that the counsel are mistaken when they
say, that a decision in favor of the defendants will be fatal to
future enterprise. This case has stood decided in their court for
several years, and the history of Massachusetts can exhibit no
period that will compare with it in investments for internal
improvements. Confidence in the integrity and good faith of the
state never stood higher, nor did capitalists ever go forward with
greater resolution and courage. I feel, therefore, justified in
affirming, that the honor and faith of the state is untarnished,
and she stands blameless in her conduct.

															I come, then, to the conclusion, for all these reasons, that the
act of 1785 is incapable of the construction put upon it by the
plaintiffs: That its meaning is plain, and it gives no franchise
beyond the bridge: That in 1792, this construction was given to it
by the legislature, and it was then extended thirty years, upon
condition that it should be so construed: That the stockholders can
complain of no injustice, for $46,000 has returned them over
$1,200,000; and if any one is a loser, by giving a great price for
the stock, he must impute it to his negligence, in not regarding
the construction given by the legislature to the act: That the rule
adopted by the legislature, and the rule of the common law, are
concurrent; and therefore, if the notice should be ruled out of the
case, it will not change the result.

															All this, I contend, is in full accordance with the policy of
the state. 1st. Her system of free road laws has, at all times,
been active, and by its operation has rendered many turnpikes
worthless. 2d. The statute books will show that numerous bridges
have been granted, at or near old ferries, without compensation.
3d. Railways and canals have been granted, in many directions,
regardless of old franchises, or of their injurious consequences to
old lines of travel; but of this more hereafter. Since, therefore,
nothing is taken from the old bridge by the law of 1828, but the
proprietors are left in full possession and enjoyment of everything
granted to them; and since their only complaint is of a diversion
of travel, and a consequent diminution of tolls, I am not able to
perceive, that they have any contract which have been violated, or
had its obligation impaired: and therefore, the constitution of the
United States has not been violated. The act of 1828 does not
rescind, alter or modify any of the provisions of the act of 1785;
but leaves the plaintiffs in the full enjoyment of them, and in the
undisturbed control of their bridge.

															I will now answer, more particularly, some of the arguments of
the learned counsel. Most of the reasoning is founded on premises
which will fail, if we have sound views of the law; or is designed
to overthrow positions which we have never assumed. He says, for
example, that the legislature has no power to resume a grant. Our
answer is, that they have not attempted it; and therefore, that
question is not raised in the case. We contend for no such power.
What they claim as their property was never granted to them; and
the mistake is, that they do not own what they suppose has been
taken away. They must establish their title, before they talk about
the resumption of grants, and the taking away of their property.
They must remember, that this right of property is the very matter
in litigation; and one of the great points to be settled is,
whether they show any title that can stand the test of legal
scrutiny. If they do, we do not claim it, without an
equivalent.

															It is said, the franchise is to be ascertained by the facts, and
is to be reasonable. It seems to me, that it is to be ascertained,
as Lord TENTERDEN says, by the terms of the bargain; and these are
to be found in the act. What is deemed reasonable, we have seen, is
co-extensive with the selfish desires of making money. When the
plaintiffs depart from the act, they can find no standard for what
is reasonable. To-day, the exclusive claim is between Boston and
Charlestown; yesterday, it embraced Canal bridge; and the day
before, West Boston bridge. If the plaintiffs can show no rule to
settle reasonable limits, how can they hope the court will relieve
them from the embarrassment? When we go in search of what is not
apparent in the act, we grope in the dark; and hence, the
well-established rule laid down in Stourbridge Canal Company v. Wheeley , that you shall not build up claims on
presumption. The plaintiffs could find no authority to rest upon
for making Boston and Charlestown the boundaries of their
franchise, until they fell upon the late case, in the exchequer, of Huzzey v. Field . What assurance have we, when the law
as to ferries shall again come under consideration, that it will
not receive a new modification, and their franchise then take new
boundaries?

															But again, another and different rule is laid down by the
counsel, which undoubtedly is considered reasonable; though in its
application it rests on quite different principles. The counsel, in
treating of what is reasonable, asks, how do you settle what is a
nuisance, where the air is corrupted? Not by bounds, not by
distance or measure; but wherever the noxious atmosphere is, there
is the nuisance: so with the plaintiffs' case, where the injury is,
there is the nuisance; whatever takes away their tolls, invades
their franchise; for this is the injury of which they complain.
This view brings us back at once to the old doctrine 'you shall not
impair my franchise;' and proves in the most conclusive manner,
that all the bridges above theirs are nuisances, for the travel
which passes over them would chiefly go over their bridge, if the
others were closed up. It is too plain, that the learned counsel,
in his able argument, has, whenever he has expounded the law, or
undertaken to show what is reasonable, fallen back upon this rule,
as the only resting-place he can find. He began, by saying, what is
reasonable must be ascertained by the facts; and ended by saying,
that the only fact necessary to be inquired into, is, does the
injury complained of, lessen the tolls? If it does, it impairs the
franchise, and is a nuisance. If this is to be the end of the
inquiry, the reasonableness or unreasonableness of the franchise
set up, is not a matter of investigation. The inquiry is not into
that fact, but whether the tolls are diminished. And, I think, this
will be found to be the only standard the plaintiffs have ever set
up. Indeed, if you admit that some injury may be lawfully done,
where is the limit? Let us then dismiss this wandering inquiry
after a reasonable franchise, and go back to the act of 1785, and
hold to that, instead of building up a new contract; for the
plaintiffs have professedly ceased to claim a right to put down all
competition that lessens their tolls.

															It is admitted, says the counsel, that the legislature has the
control over public ways; and their judgment, as to the necessity
for them, is final and conclusive. But he adds, that it is not like
the British parliament, omnipotent, for this court has a right to
correct its errors. The power of this court, allow me to say, also,
is not omnipotent; and it can acquire no jurisdiction over an act
of the legislature, unless such act impairs the obligation of
contract. I may add, speaking it with great deference and respect,
that while I repose great confidence in this tribunal, I feel no
cause for distrust in those of our commonwealth. I, therefore, do
not feel that we are unsafe, without such a corrective; as we, in
truth, are safe, in most matters upon which our courts adjudicate.
I can see no more impropriety or hazard in resting final
jurisdiction there, than here; for I am not aware of any proneness
there to error or excess, which demands a corrective. Indeed, it
cannot be desirable, nor it is the purpose of the federal
constitution, to carry this jurisdiction over the constitutions and
laws of the states. The system would manifestly be insupportable;
and I shall, before I leave the case, attempt to show, that the
jurisdiction of this court does not reach this case, because it
falls exclusively within the constitution and laws of
Massachusetts. I shall endeavor to make it appear, even if property
has been taken for public use, it is no violation of contract to do
it; and the question of compensation must be decided, finally, by
our own court.

															Again, the learned counsel says, 'the legislature is limited by
the principles of natural justice;' and I agree that it ought to
be, and that it ought not to take property without compensation;
but the constitution of the United States nowhere gives this court
a right to inquire, whether the legislature, and the state courts
have disregarded the principles of natural justice. I would
respectfully ask, if this court is to be the corrective in such
cases? But I am not willing the reproach of violating the
principles of natural justice, should rest on the state. Did the
state ask the plaintiffs to build the bridge? Did she ask them to
accept the act, after it was made a law? They sought the privilege,
and accepted the act, after taking all the time they desired to
consider its provisions; and have had, and may continue to have,
the full benefit of them. The supposed violation of natural justice
does not consist in interfering with the provisions of the act; but
in refusing to recognise claims not enumerated in it-rights
unauthorized by it-privileges not intended to be granted. We cannot
find in the act certain provisions of which they claim the benefit.
It is a violation of natural justice, to refuse them the right to
add what they please to the act?

															Again, they state to the court, to prove their disposition to
accommodate the public, that they proposed to the legislature to
enlarge the bridge and the avenues, and to make other alterations,
to meet the public emergencies; and so they did: but is it not too
plain, that this offer came when they must have known it could not
be accepted? They had contested the right to build a new bridge,
again and again, before committees, and the legislature. The
corporation voted to make the proposals, on the 25th of February,
and the law was approved on the 12th of March following. There is
little doubt, therefore, that they were made, after the report of
the committee, and during the pendency of the bill before the
legislature. It is hardly reasonable to suppose, that propositions
made, thus apparently with reluctance, and in that late stage of
the proceeding, could be any otherwise viewed, than as measures for
delay-than as counter-plans to defeat the measure. But whether that
be so or not, they came too late. But further, it seems, they
considered themselves as having no authority to erect suitable
accommodations for the public. They could not enlarge the bridge,
nor the avenues, if insufficient for the travel, without a grant of
power from the legislature. Is this consistent with the claim of
exclusive right over the river? If the court will look into the
cases quoted, in regard to markets, it would be found, that the
public are under no obligation to respect the franchise, unless
suitable accommodation for the business is afforded; and that the
exclusive right, and the obligation, go together. Is it true, that
the plaintiffs hold this exclusive privilege, and yet have no power
to open a way suited to the public travel? Does not this limitation
of power prove a limited franchise? Their power to enlarge does not
reach beyond the planks of the bridge; and why? Because the act of
1785 will carry them no further. By what rule, then, will it carry
their franchise further? If they can imply a franchise; then may
they imply a power to enlarge, but this I think they will not
venture upon, since they admit, the act of 1785 gives no
countenance to it.

															These are some of the leading arguments which remained
unnoticed, and I shall not detain the court longer in pursuing this
kind of inquiry, for I shall occupy more of their time, if I follow
out the various positions taken, in an argument of nearly three
days, than I think myself justified in consuming. I will,
therefore, pass to the next great division of the case, which
constitutes, in the pleadings, the second issue. If we are right in
the legal positions we have assumed, our labor here is unnecessary,
for the plaintiffs have no case; but as we cannot know how the
minds of the court will run in this matter, we must investigate the
point. The question is, if property has been taken for public use,
under the act of 1828, and no compensation has been made, is it a
violation of the rights of the plaintiffs, so as to impair the
obligation of contract, and thus conflict with the constitution of
the United States?

															I shall contend, that whatever may be the constitution and laws
of Massachusetts, and whatever obligations they may impose on the
legislature, to provide compensation, where property is taken for
public use; the omission to do it, in the act of 1828, is no
violation of a contract, which impairs its obligation, within the
meaning of the constitution of the United States; and therefore,
this court has no jurisdiction in the matter.

															To establish this conclusion, I shall attempt to maintain the
following positions: 1. That the power to provide public highways,
is an attribute of sovereignty, necessarily residing at all times
in a state. This is apparent; for without this power, all
intercommunication would be interrupted, and each person confined
in matter of right to his own estate. It is an element of
sovereignty, as much as the power of taxation; and political
organization cannot exist without it. 2. This power necessarily
implies the right to take private property for public use. The
territory of a state is owned by individuals, and roads must run
over this territory; therefore, they cannot be authorized, against
consent, with the right to appropriate private property to public
use. The alternative is, that the government must have this power,
or the public can have no roads. 3. All property in Massachusetts,
including franchises, is held and enjoyed, subject to this right of
sovereignty, resting upon it as an incumbrance. I know of no
property in the state exempted from his liability; and in Commonwealth v. Breed , 4 Pick. 460, the court allege,
that it has always been taken, when needed, be it what it may; and
mentions, as illustrative of the extent of this right, that the
legislature have, at pleasure, obstructed navigable rivers, which
are public highways. The plaintiffs' bridge was built upon the very
ways of the ferry, and the court in 7 Pick. considers this as
lawful. This right is co-existent with the colony, and so far as my
knowledge extends, has never been questioned. The legislature are
the sole and final judges of the necessity of taking property in
this manner; on the ground, that it is their duty, as the
representatives of the people, to provide for the public wants.
Ibid. 4. As this right to provide ways lies among the elements of
government, and has always been exercised, and asserted in its
broadest terms; it follows, that the right to take private property
for this purpose, is equally broad; and that the mere taking and
appropriation of it to public use, can never, of itself, impair the
obligation of contract, or violate the constitution of the United
States; for the fundamental laws of the state authorize the taking,
and all property is always held on condition that it may be so
taken and applied. The right rests as an incumbrance upon it, as
much as the right of taxation. This principle is sustained, if it
needs authority, in Providence Bank v. Billings , 4
Pet. 514; where it is said, in substance, that if a franchise be
taxed to its ruin, by the very power that created it, this is no
violation of contract, for the right to tax is an abiding public
right covering all property. To refuse to make compensation, may
violate the constitution of Massachusetts, but not of the United
States.

															The right to make war, to impose embargoes and non-intercourse
acts, to change public policy, to regulate intercourse with foreign
countries, and to do and perform many other things-all which may
subject the people to great hazards and losses-has never, and can
never, be questioned, whatever may be their influence upon trade or
individual property. But however disastrous such acts may be, and
whatever losses may be sustained, the citizens are without remedy.
These mutations make one poor, and another rich; but they are
incident to the social and political condition of mankind. Public
policy, and public laws, cannot be made to bear upon all alike. New
ways, for example, must be provided. In doing this, the property of
one, which is not touched, is nearly ruined, by being abandoned by
the travel, while that of another is benefited by the passage of
the new way over it. But all who hold property, hold it subject to
the right to make these changes, for the public good demands it;
and the right to do it, must, I think, stand unquestioned. It is
one of those attributes of sovereignty, which must be constantly
exercised; and such property, be it what it may, must be taken, as
is necessary to meet the exigencies of the public for ways.

															It is plain, therefore, that no property is exempt from this
liability to be taken, unless the state has agreed to exempt it;
and it may well be doubted, whether the legislature of a state has
any authority to bind the state to a contract to exempt property
from this liability beyond the pleasure of the state. This power
bears a strong resemblance to the taxing power; and in Providence Bank v. Billings the right to perpetually
exempt property from taxation, is considered doubtful. If the
sovereign right to make roads, can be alienated as to a small
territory, it may be as to a large; and thus the state might, by
legislative power, be dispossessed of one of its most necessary and
essential powers for ever. The sovereignty of a state seems to me
to be an unfit matter for bargain and sale, in perpetuum; and hence, the right is acknowledged, whenever the public exigency
demands it, to lay new ways over ways already granted, as in the
case before us, by compensating for the property taken.

															When a way is laid over property, but two questions can arise;
is the property exempt from liability to this public burden? and is
compensation provided for such as is taken for public use? The
first of these questions is not raised in this; for it is not
urged, that the defendants' bridge touches anything exempt from
being taken for public use. The second, as I have intimated, I
shall, by and by, attempt to prove, does not fall within this
jurisdiction, but belongs to the local courts.

															The plaintiffs raise another question, which I must first
consider, for it meets me here in its natural order: they allege,
that the act of 1828 impairs the obligation of contract, and
therefore, violates the constitution of the United States; and this
they must establish, before they can give this court jurisdiction.
I come, therefore, to the fifth inquiry, has the state agreed to
make compensation to the Charles River bridge company, for the
privilege of running another bridge or way across the river, which
diminishes their tolls? If the state has made such a contract, let
her abide by it; if not, then let the plaintiffs show some right to
bring us here. No such provision can be found in the act of 1785;
nor is there anything in the act, which would lead one to suppose,
that any such purpose, was, or could have been, within the intent
or meaning of the legislature. It would, therefore, be a forced,
unnatural inference. But under the rule of construction applicable
to such acts, I deny the right of the court to raise an
implication, which is not a clear and necessary inference from the
terms of the act. If the inference be at all doubtful, or if the
act is fairly capable of another construction, then the implication
cannot be raised. I submit to the court, with much confidence, that
such an obligation does not spring naturally from the language or
general tenor of the act; and one can scarcely fail to be confirmed
in that opinion, when he turns to the bill of rights, prefatory to
the constitution of Massachusetts; and there finds, in the 10th
article, provision made for compensation in cases where property is
taken for public use. The plaintiffs, if they thought of the matter
at all, doubtless relied on this provision in the fundamental law.
They had no motives, then, for other provisions in the act; for the
constitution of the United States was not made or ratified till
1789, four years subsequent to the passage of the act of 1785. It
seems to me hardly to admit of a doubt, that when the act of 1785
was passed, all relied on the bill of rights for indemnity, in case
public emergency called for an appropriation of the franchise for
public use.

															This being the state of things, I will inquire, first, what
provision has been made to satisfy the constitution of
Massachusetts? and second, whether that of the United States has
been violated? On the first point, I will only add to what has been
said, that I shall not contend, that where property is taken for
public use, the bill of rights does not impose a peremptory
obligation to compensate for it.

															The act of 1828 provides an indemnity for all real estate taken
for the bridge. The plaintiffs complain, that a part of their
franchise is taken. What is it? An incorporeal hereditament, but
issuing from real estate-a right to exclude other interfering ways.
Now, if they have such a right spreading over the river, in the
nature of an easement, and can show that the new bridge is within
their limits, why is not a sufficient remedy provided by the act?
Is it because they cannot define this franchise, or give any
reasonable account of its dimensions, that they omitted to put in
their claim for damages? If the new bridge does not touch this
right, then, by the laws of Massachusetts, they can have no claim
for damage, however much they may suffer.

															The doctrine is well settled in Callender v. Marsh , and many other cases; and the rules applied to the
bill of rights are these: Where property is actually taken for
public use, there the party injured may have his damage. Where
property is not touched, however much the owner may suffer, he has,
under the bill, no remedy, for nothing is taken for public use; and
it is damnum absque injuria; what is merely consequential,
is, therefore, without remedy. If the right of exclusion does not
reach up the river, above the new bridge, then the defendants are
not liable, whatever may be the diversion of tolls; for they do not
touch the property of the plaintiffs. I have shown, I trust, very
clearly, that a diversion of tolls is not necessarily, of itself,
any invasion of the plaintiffs' rights. They admit this, because
they now admit that Canal bridge and West Boston bridge were both
lawfully erected, and yet both diverted tolls to the extent of
travel over them. Nothing is more plain, than that they have no
property in the travel, or any line of travel; for if they had,
these diversions from their line would be aggressions upon their
rights. There cannot be a property in what one neither has in
possession, nor any right to reduce to possession. The plaintiffs
can compel no one to go over their bridge. The injury, therefore,
which the plaintiffs sustain, if any, is because the defendants
have come within the limits of their franchise, and erected a
bridge, and caused a diversion of toll, which, under these
circumstances, must be unlawful. Our answer to this is, that they
have utterly failed to establish any such exclusive right or title,
as the act of 1785 gives no countenance to it; and they are forbid
making such an unnecessary and unnatural implication of right. The
damage which they suffer, then, is merely consequential, and falls
within the principles of the case of Callender v. Marsh , 1 Pick. 416.

															But suppose, we are erroneous in this reasoning, and the new
bridge actually falls within their exclusive right, and thus
becomes unlawfully injurious; how is the case brought within the
jurisdiction of this court? I repeat, the plaintiffs must show a
violation of the constitution of the United States, before they can
make this jurisdiction attach. They allege, that the act of 1828,
being an act of the state, impairs the obligation of a contract,
and therein violates the constitution of the United States; because
it forbids the making of such a law. But what contract does it
impair? What obligation does it violate? I have heard much
discussion about the injuries sustained by the plaintiffs, in
consequence of the act of 1828; but have they pointed out the
contract, or the obligation of a contract, which has been violated?
If so, where is it? The contract, if any, is the act of 1785. It is
a contract with the state itself; but this, in no respect, changes
the character of the case; for the constitution is no more
applicable to a contract with the state, than to any other
contract. What has the state undertaken to do, which it has refused
to do? What has it agreed not to do, which it has done? I hope the
court will look into the act, and see if they can find any
provision there which has been violated. The state authorized the
erection and continuance of a bridge, and the right to take toll,
during the period of seventy years. It has not revoked, annulled or
altered any of these powers. It has not disturbed their possession
or right to take toll; it has not altered a letter of the act. But
it is urged, that the state has authorized the erection of a bridge
which greatly diminishes the tolls; and this is true; and the
question here is, did she agree not to do it, in and by the acts of
1785 or 1792? If so, point out the agreement. The state, it is
admitted on all hands, has an undoubted right to make new bridges,
even if they do destroy the franchises of other bridges; but when
she takes property for public use, she must compensate for the
damage. And where arises the obligation to do this? Not in the act
of 1785 or 1792, but in the bill of rights; here lies the
obligation, and nowhere else. There is nothing in the act of 1785
in regard to the duty of compensation.

															The question here arises, is the bill of rights a part of the
contract? If it is not, I humbly contend, that this court cannot
entertain jurisdiction, for its jurisdiction reaches only the
constitution and laws of the United States; and this case cannot be
brought under that constitution, unless a contract can be shown,
which is impaired by the act of 1828. The laws and constitutions of
the states belong solely to the state courts to expound. Jackson v. Lamphire , 3 Pet. 280. The bill of rights
is part of the constitution of Massachusetts; and is not, and
cannot be, any part of a contract, unless expressly made so by
agreement. The laws of a state may be used to expound and explain,
but never to supersede or to vary a contract. Ogden v. Saunders , 12 Wheat. 213; 3 Story's Com. 249. If this
provision of the bill of rights should be added to the act of 1785,
it would both supersede and vary the contract from what it now is.
These principles seem to be settled, beyond question. I consider it
also well settled, that a contract with a state stands on ground in
no respect differing from all other contracts; and the constitution
of the United States has, in its provisions, no reference specially
to such contracts. The state is bound by no higher obligation to
abstain from violating its own contracts by law, than to abstain
from violating all other contracts. All citizens stand on the same
footing in this respect, with the same measure of redress, and the
same extent of rights. If the bill of rights can be engrafted upon
this contract as a condition, because it was a public law, of which
all must take notice, when the act of 1785 was passed; then, for
the same reason, it becomes a condition of every contract; and
whoever has his property taken for public use, may appeal to this
court, and it would thus open its jurisdiction to revise a very
extensive branch of jurisprudence, hitherto considered as
exclusively belonging to the states. Is the court prepared for
this? Did the framers of the constitution anticipate it? Will the
public be satisfied with it? Not only matters of this kind will be
brought here, but many other things. Why may not one who claims a
right to vote in Massachusetts, and is denied the privilege, claim
that the obligation of contract is impaired, for his right rests on
the constitution? Why may not all officers whose qualifications,
prescribed by the constitution, are drawn in question, and the
rights they claim denied to them, come here for redress? Why may
not a judge, who is legislated out of office, by taking away his
salary, appeal to this court? Such a construction would open an
alarming jurisdiction, and make this court preside over the
constitution and laws of the states, as well as those of the United
States; for this would be the result of making the constitution a
part of contracts; the road laws alone, would take more than the
whole time of the court. But I will not dwell on this aspect of the
case, for this pretension has not been set up; and I am sure, the
decisions of this court are decisive of the question.

															What then becomes of the jurisdiction, even admitting that the
act of 1828 did violate the bill of rights? Is it not plain, that
no contract or obligation of a contract is impaired, and therefore,
that the constitution of the United States does not reach the case?
The courts of Massachusetts have acted upon the matter, and whether
for good or evil, right or wrong, their decision is final.

															I might add, that where property is taken for public use, it is
not taken under, or by virtue of, any contract, but in the
necessary exercise of a great and essential element of sovereignty.
It is a right that necessarily rides over all property, and can
never be questioned. It is the duty of every government to make
compensation, where it is taken; and Massachusetts has made what
she deems adequate and suitable provision, by her fundamental law,
and it is no part of the business of this government to inquire
into the sufficiency or insufficiency of that provision, nor what
exposition is put upon it by her courts. The thing does not lie in
contract, but in public law; and this court has never gone further
than to declare private acts, contracts. Public acts, in the nature
of things, cannot be contracts, but a rule of action.

															This case, therefore, bears little, if any resemblance to Fletcher v. Peck, New Jersey v. Wilson , or Dartmouth College v. Woodward . In all these cases,
and in all the others quoted, the parties affected held rights
under private acts, which the states of Georgia, New Jersey and New
Hampshire attempted, respectively, to repeal, after rights had
vested. The question raised in each case was, whether a state,
where it had conveyed property and rights to an individual, could
annul its own act. If a state, for example, conveys land to an
individual, nothing can be more absurd, than to suppose it can
annul its title and resume the property; for such grants are
irrevocable. So also, in the case of Sturges v. Crowninshield , it was decided, that if one promises to pay
money to another, a state cannot, by a law, release him from his
contract, without payment. In all these cases, there is a manifest
impairing of the obligation of contract; for the whole benefit is
taken away, and the contract abrogated.

															But in this case, it is admitted, that the state has a right to
take any property whatever, for highways; and, that the franchise
of Charles River bridge is as liable as any other property to be
seized for this purpose. The taking, therefore, for public use, is
no wrong. It is no violation of the act of 1785, for it has always
been held under that act, subject to this right. If it has been
taken, therefore, that act is both right and lawful; for it is
consistent with the contract, instead of a breach of it. The only
matter which can be complained of, is, that no compensation has
been made. This right to compensation does not spring up under the
contract, but is derived from public law. The bill of rights alone
gives it; and on that alone can the claim be sustained, if
sustained at all. Over that branch of law, I repeat, this court has
no jurisdiction, and redress must be sought in the tribunals of
Massachusetts, and in no other place. Such is the necessary result,
if property has been taken. On this point, therefore, we discover
no error which can be corrected here.

															But the plaintiffs are in no worse condition, and have no higher
claim to indemnity, than a large class of citizens who suffer by
public improvements. Railroads, perhaps, generally, supersede the
highways near them; and render stages, wagons and other property,
to a great extent, less valuable. They frustrate the views, and
lessen the income of all who depend on the public travel for
patronage and support. The business of large communities, and the
value of real estate, is seriously diminished, but there could be
no indemnity for such losses. It is a mere misfortune, for such
persons have no right over, or interest in, the public travel,
which can be the subject of legal claim. The public convenience
demands such improvements, and they are not to be obstructed from
such causes.

															I must be permitted, before I leave this subject, to declare
distinctly, that it is no part of my purpose to urge any change or
modification of the laws; nor to advance the opinion, that the
strong arm of the public may seize individual property, and
sacrifice it to the public convenience. I am aware, that much has
been said of this case; and that it has been said, there is no
ground for the defence to standon, short of a revolution of
principles which will unsettle private rights, and subject them to
public caprice. I am not unconscious of the dangers which surround
such doctrines; and I am equally sensible of the folly of urging
vested rights, as they are denominated, to such extremes as to make
them felt as grievous burdens, and onerous inconveniences, by the
public. Many of the feudal institutions which still have
acknowledged force in England, have been repudiated there; and I
cannot think, there is much wisdom in attempting to engraft any of
them upon our institutions, beyond where they have been distinctly
recognised to be the law of the land. But while I say this, I am
fully impressed with the vital importance of giving steady,
unceasing protection to private rights. The great elements of
public liberty lie in the firm protection of private rights. The
great end of political association, in a free government, is to
obtain a firm, unwavering protection of our persons and honest
earnings. If a government fails to do this, it is of little value;
for we scarcely want it for any other purpose. Liberty consists
chiefly in freedom from arbitrary restraint and exactions; and no
one can feel more sincerely anxious for the preservation of these
great principles, than I do. I am fully sensible, that the
constitution and the laws are the shield under which we take
shelter. They are our place of refuge-the sanctuary to which we
must cling, if we would preserve public liberty. I am not,
therefore, for laying rude hands upon them; I am not for tearing
away these great barriers of right. I wish it, therefore, to be
distinctly understood, that I place our case within the pale of the
law, and invoke no violence in its aid. I ask for no new principles
or rules, but for a fair and just exposition of the laws; and this,
I know, is all we shall obtain.

															Our case stands on what is called, by this court, a contract;
and I only contend that this contract, when construed by the rules
of law, as I understand them, after careful research and
consideration, will sustain no such exclusive rights and privileges
as the plaintiffs claim. I see no great constitutional question
involved in this matter; for it is not a matter of constitutional
law, whether the act of 1785 gives a wide, or a narrow franchise,
but a simple inquiry into the meaning of that act. The case
involves nothing else. If I do not mistake the weight of authority,
I have shown that, in England, such grants are strictly construed,
in favor of the public. This is the rule in a grant of privileges
and monopolies; and I hope the public here is entitled to as
favorable a consideration. All I ask is, that this rule shall be
applied to the act of 1785. It is due to public justice, and public
policy, that it should be. I can see no objection to it, while I do
see much to object to in the opposite course. I have never had but
one opinion in this matter, and all investigation has tendered to
strengthen it. Some may suffer by a decision in favor of the
defendants, and this I regret; but it affords no reason whatever,
for establishing unsound rules of construction, or for denying to
the public the accommodation of a lawful way. Webster , for the plaintiffs in error,(a) stated, that the
question before the court was one of a private right, and was to be
determined by the fair construction of a contract. Much had been
said, to bring the claims of the plaintiffs in error into reproach.
This course of remark does not affect their right to their
property, if this court shall consider that property has been taken
from them by proceedings which violate a contract; and in a case
where this court has a constitutional right to interpose for its
protection and restoration.

															It is said, that the proprietors of Charles River bridge have
been repaid for the advances made by them in building the bridge.
But this is not the question upon which the court has to decide; it
is a question of contract; and if so, where is the necessity to
inquire whether the plaintiffs have laid out a million, or nothing?
If there was a contract, the question is not, what was the amount
of profit to be derived from it, but what were its provisions;
however advantageous to those with whom it was made. It is a
contract for the annual receipt of tolls, for a specified period of
time; and it is said, the state, which, by its law, brought the
company into existence, by allowing these tolls, may break the
contract, because the amount of the tolls is large; and by a
legislative act, say, that, for a portion of the time granted, the
contract shall not be in force!

															The case has been argued before; once in the superior court of
the state of Massachusetts, and once in this court; and without any
disrespect to the counsel who argued it before the present hearing,
it has been exhibited on new and enlarged grounds. It has been
said, in the argument, that the right of eminent domain cannot be
granted away by a legislative act; and if granted, the same may be
resumed, against the express terms of the grant. The necessity of
the existence of this right in a sovereign state, has been asserted
to be shown, by a reference to many cases; as the grant of a right
to construct a turnpike, which, if it gave an exclusive right of
making all communications between two places, to a corporation, or
to an individual, would operate to prevent the introduction of
improved modes of intercourse, as by railroads; and thus be most
extensively injurious to the interests and stay, to a fatal extent,
the prosperity of the community. The plaintiffs in error deny this
position. They hold, that the obligation of a contract is complete;
and that other means than by its violation, may protect the
interests of the community. Such a violation of a contract would be
fatal to the confidence of the governed in those who govern; and
would destroy the security of all property, and all rights derived
under it.

															The localities of the two bridges, the Charles River bridge, and
the Warren bridge, are well understood by the court. They
accommodate the same line of travel, and either of them furnishes
all the convenience, and all the facilities the line of travel
requires. That one is sufficient, is shown by the fact, which is
not denied, that since the Warren bridge has become free, all
travellers pass over it, and no tolls are received by the
proprietors of the Charles River bridge. When the act authorizing
the Warren bridge was passed, and the company was about to erect
the bridge, the plaintiffs applied to the superior court of
Massachusetts for an injunction to prevent the work going on. This
was refused, on the ground that nothing had been done by the
company which presented the question of the unconstitutionality of
the law. Before the Warren bridge was in the actual receipt of
tolls, the bill now before the court was filed; and afterwards, a
supplement bill, the proprietors of the Warren bridge being in the
actual receipt of tolls; claiming that the charter under which they
acted was a violation of the contract of the state, with the
proprietors of the Charles River bridge, and was, therefore,
against the constitution of the United States. The case is now
before this court, on this question.

															It is said, that Boston has many of such bridges as that
constructed by the plaintiffs. This must necessarily be so; Boston
is an exception in the ocean; she is almost surrounded by the
waters of the sea, and is approached everywhere, but in one part,
by a bridge. It is said, that those numerous bridges have given
rise to no litigation. This is so, but the just inference is, that
by no one of these has a right been interfered with. In fact, in
all the cases where rival bridges, or bridges affecting prior
rights, have been put up, it is understood, that there have been
agreements with those who were or might be affected by them. This
was the case with West Boston bridge. It was purchased by those who
sought to make a free bridge which would interfere with it. It has
been said, in argument, that the ferry franchise, which was the
property of Harvard College, was seized by the legislature, when
they authorized the erection of the Charles River bridge. But this
was not so. A compensation was allowed for the use of the
franchise, or its interruption; and no objection was ever made to
it by that institution. The just inference is, that a previous
agreement had been made with the college; and that the sum annually
paid by the proprietors of Charles River bridge, was entirely
satisfactory to that corporation.

															Mr. Webster then went into an examination of the circumstances
which had attended the erection of other bridges from the main land
to Boston; and he contended, that in all the cases, compensation
had been made to those who were injuriously affected by them. In
the case of the Cambridge bridge, the legislature, in the act
authorizing it, extended the charter of the proprietors of the
Charles River bridge, as a compensation for the erection of another
bridge. This was a compensation for the tolls taken by diverting
the line of travel. In none of these cases, was there an appeal to
prerogative, and to its all-superseding powers. The history of the
Warren bridge exhibits an entirely different state of things. It
was undertaken on different principles, and under a different
temper. It began with a clamor about monopoly! It was asserted,
that the public had a right to break up the monopoly which was held
by the Charles River bridge company; that they had a right to have
a free bridge. Applications were frequently made to the
legislature, on those principles, and for that purpose, during five
years, without success; and the bill, authorizing the bridge, when
it was first passed by the legislature of Massachusetts, was
rejected by the veto of the governor. When the charter was actually
granted, it passed the legislature by a majority of as many members
as there were hundreds in the body.

															If it had not been for the provision in the constitution of the
United States, under which the plaintiffs now ask for the
protection of this court, it is believed, the law would not have
been enacted. Members of the legislature consented to the law, on
the ground, that if it interfered with chartererd rights, this
court would set it aside. The argument was, that if the law was a
violation of the charter, it would be of no avail. Thus it passed.
But since its passage, there is an appeal to the right of eminent
domain to sustain it. It is said, take care! You are treading on
burning embers! You are asking to interfere with the rights of the
state to make railroads, and modern improvements, which supersede
those of past times by their superiority! You prevent the progress
of improvements, essential to the prosperity of the community! It
would then appear, that the existence of the provision of the
constitution of the United States, which this court is now called
upon to apply, has been the whole cause of the injury done to the
plaintiffs, by the passage of the law authorizing the Warren
bridge. But for the belief that the rights of plaintiffs would be
restored, by the appeal to that provision, the law would not have
existed.

															The learned gentleman who first argued the case for the
defendants, went the whole length of asserting the power of the
legislature to take away the grant, without making compensation.
The other gentleman asks, if the plaintiffs are not yet satisfied
with exactions on the public? What are exactions? They are
something unjust. The plaintiffs have taken tolls for passing the
bridge; but this they had a right to do by their charter. It is
said, the tolls were oppressive; but is it oppression, when the
right was given by the charter to take them, as the stipulated
income for capital laid out under the charter? It is said, that the
public are on one side, and the plaintiffs are on the other; that
if the case is decided one way, a thousand hands will be raised, to
one, should the decision be different; but this is not correct. The
public sentiment, in this case, is not on one side. It is not with
the defendants. The representatives of Boston never voted for the
Warren bridge; they thought there were existing vested rights,
which ought not to be disregarded. The city of Boston would have
purchased the right of the Charles River bridge, if they had been
asked. The property, or stock in the bridge, was dispersed through
the community; it was not a monopoly.

															The honor of Massachusetts will stand unblemished in this
controversy. The plaintiffs impute no dishonor to her, or to her
legislature. Massachusetts only wants to know if the law in favor
of the Warren bridge, has infringed upon the vested rights of the
plaintiffs; and if this is so, she will promptly make compensation.
The plaintiffs say, the act authorizing the Warren bridge has
violated the constitution of the United States; and if this court
shall so declare, the state of Massachusetts will do full justice
to those who have been injured by her authority.

															The counsel for the defendants have said, that the plaintiffs
have sustained no loss but that of their golden prospects. They
have lost all their property; a property worth $300,000 before the
new bridge was built, and now not worth $30. The rights of the
plaintiffs are no monopoly. They are the enjoyment of the property
for which they had paid in advance; and which, by a contract made
by the law, they were entitled to enjoy for twenty years yet to
come. They are called rapacious monopolists, when they claim to
hold what they have purchased. Those who have assailed this
property, have taken it from them-have taken all from them, without
compensation. Where, and with whom, is the rapacity to be found in
the transaction?

															The provisions of the law of Massachusetts against monopolies,
are taken from the English statutes of James I. They were so taken,
for it follows that statute in terms, and contains the same
exceptions in favor of useful inventions. Thus, the Massachusetts
law is the same with that of England, which has never been
considered as extending to such cases as this before the court. The
language of the law is 'monopolies;' but this is a 'franchise,' and
not a monopoly; and thus the clamor which was raised has no
application to the property of the plaintiffs in error. It is
unjust, and without application.

															The record presents the only questions in the case. What are
they? The original bill was filed in 1828, and after the answer of
the defendants was put in, the amended bill was filed, only to put
in issue the questions of law and fact presented in the original
bill. The courts of Massachusetts proceeded in this case according
to the equity rules of this court; and this case is fully
exhibited, so that the whole of the issues of law can be decided
here. The original bill founded the rights of the plaintiffs: 1st.
On the act of the legislature of Massachusetts of 1785. 2d. On the
purchase, by the plaintiffs, of the ferry-right, which had belonged
to Harvard College. 3d. On the consideration paid for the charter
to build the bridge, and the prolongation of the charter for twenty
years, by the act of 1792. The plaintiffs say, the act for the
erection of the Warren bridge violates the constitution of the
United States; and that the act takes the property of the
plaintiffs for public use, without making compensation for it. They
rest on their charter. The defendants, in their answer, do not say
the property has been taken for public use, but they rest on their
charter: and they say, that the legislature had a right to pass the
act, as it does not infringe the property of the complainants. This
presents the question, whether the constitution of the United
States is violated? There is no other issue made on this
record.

															This state of the pleadings excludes much of the matter which
has been presented by the counsel for the defendants. They do not
present the question of eminent domain. The plaintiffs might have
presented that question, in the court of Massachusetts. They might
have said, that their property was taken by the law, for public
use; and was taken under the right of eminent domain. This would
have been a Massachusetts question; and one which could not have
been brought before this court. It is admitted, that if the
legislature of Massachusetts takes private property for public use,
under the power of eminent domain, this court cannot take
cognisance of the case. If the case had been so put, before the
superior court of Massachusetts, that court could have decided,
that the complainants were entitled to compensation, and that the
defendants were bound to make it. It is the law of this court, that
the parties must be confined to the questions on the record. The
only issue here is, the question whether the defendants have
infringed the rights of the plaintiffs, and have violated the
constitution of the United States.

															While this case was in progress through the courts of
Massachusetts, and depending in this court, it appeared that
one-half of the tolls of the plaintiffs' bridge was taken away. New
the whole tolls are gone! This has occurred since the Warren bridge
has become a free bridge. The legislature of Massachusetts have
given to the plaintiffs the right to the franchise of a bridge at
Charlestown; and the question is, whether this is such a right as
that it can be violated or infringed? The franchise is a thing
which lies in grant, and is, therefore, a contract; and if, by the
charter to the Warren bridge, it has been infringed, it comes
within the prohibition of the constitution relative to contracts.
The question is, whether the plaintiffs had such a franchise? This
is the only question in the record.

															A preliminary objection to the right of this court to proceed in
this case, has been made, on the suggestion, that the case is one
against the state of Massachusetts; as the state of Massachusetts
is now the only party interested in the cause, the bridge having
become her property; and it is said, against the state, this court
can grant no relief. A state cannot be brought into this court, in
a suit by individuals, or a corporation. The state is not a party
to the cause. The bill is against the persons who built the Warren
bridge; and it is from them relief is sought and required; and
those persons stand as trespassers, if the law, under which the
acted, is unconstitutional. But after a suit is lawfully commenced,
it goes on against all who afterwards make themselves parties to
it. There is no effect on the rights of the plaintiffs, by a change
of this kind, as a wrongdoer cannot excuse himself by parting with
his property.

															The plaintiffs ask a decree against the proprietors of the
Warren bridge, John Skinner and others; and a decree is asked
against no others. The question which is raised by the objection to
the jurisdiction of this court in this case, is, whether the court
can proceed in a case in which a state has an interest? This cannot
be asserted with success. If such were the law, the exclusion of
jurisdiction would extend to all cases of lands granted by the
United States; for in cases of such grants, if no title has been
given, the United States are bound to make compensation. Such a
doctrine would overrule the judicial structure of the government,
and prevent the administration of its most important functions.

															This question has been decided in this court, in the case of Osborn v. Bank of the United States , 9 Wheat. 557.
This is precisely the same question with that in the case referred
to. The state of Ohio claimed the money in the hands of Osborn, as
a tax on the funds of the Bank of the United States, imposed by an
act of the legislature of the state. The state of Massachusetts
claims the tolls of the bridge, derived from a law of the state.
This court, in the case cited, expressly declare it to be one in
which the state is a party. So, in Fletcher v. Peck ,
where Georgia had declared a deed given by the state for lands,
void; but the parties to the case were those on the record,
although the decision directly vacated the proceedings of the
legislature of Georgia, yet the court had jurisdiction. In this
case, no judgment will be pronounced against the state of
Massachusetts. On these pleadings, if the constitutional question
were out of the case, could any action of the court affect the
state? She is, in fact, no party in this cause. She cannot be a
party, to blow up a suit, and not be subjected to its final result.
Suppose, a state should coin money, congress would not prohibit its
being done; it is prohibited by the constitution, and a law could
not do more. Could the law be carried into effect? Proceedings
under it would be brought before this court, by an action against
the agents of the state, or by a suit against the party issuing it,
or making a contract for the money so coined. If you cannot, by a
suit against an individual, question the unconstitutional acts of a
party, the whole of the powers of the constitution, upon its great
and vital provisions for the preservation of the government, are
defeated.

															It has been said, the court can do no justice to the parties who
have sought its protection, because the superior court of
Massachusetts has only a limited jurisdiction in cases of equity.
It is admitted, that the equity jurisdiction of the courts of
Massachusetts is limited; but it has all the jurisdiction over the
subject, to which its powers extends, as any other court of equity.
The law of Massachusetts gives full equity powers to the court, in
all cases which are made subject to its jurisdiction. 6 Pick. 395.
The law of 1827 gave this jurisdiction in all cases of waste and
nuisance. This bill prays for general relief. This court may abate
the nuisance, and decree a repayment of the tolls; and do all in
the case, that, according to law and equity, may appertain to it.
In equity, a court may enjoin against the nuisance, and decree a
compensation.

															But all this discussion about the power of the court of
Massachusetts to make a suitable decree, has no place here. This
court can, in their decree, declare, whether the act of 1828 does
impair the contract of 1785. This is all the court can do; and it
is nothing to them, what will be done in the case, by the court to
which the case will be remanded. In conformity with the provisions
of the judiciary act of 1789, this court remands a case, when
further proceedings are necessary in the court from which it may
have been brought; when nothing else is required in that court,
this court will give a final judgment. In this case, the court are
bound down by the record, to the single question of the validity of
the law, under which the defendants acted.

															To proceed to the main questions in the cause:

															1. The plaintiffs claim to set up a bridge, exclusively, between
Boston and Charlestown; or, if they are not entitled to this, they
claim to put down all such other bridges as interfere with the
profits and enjoyments of their privileges. It is not contended,
that the tormini include or exclude all within the place.
Every person must keep so far off, as not to do a direct mischief
to the plaintiffs' rights. The plaintiffs say, that the ferry-right
gave them the privilege of excluding rivals. That by the charter,
they have a franchise which gives them rights, which cannot be
violated by the proceedings of a subsequent legislature. It is in
vain to attempt to derive anything from the ferry-right, if it is
what the defendants say it is. They say that a ferry is a path over
a river; and that the English law relating to ferries never was in
force in Massachusetts. This position is denied by the plaintiffs.
In support of this assertion, they give a bead-roll of ferries
which have been taken away; and bridges built where they before
existed. This is statement.

															The law of Massachusetts has always been the common law of
England. Is there any authority for the contrary, in any of the
decisions of her courts? There may be such, but it is hoped not,
and it is believed not. Have the ancient fathers of the profession
of the law-the Parsons, the Sedgwicks, the Danes, taught other
doctrine? Has the contrary been sustained by these men-by their
opinions? In the case referred to by the counsel for the
defendants, a distinguished lawyer of Massachusetts allowed a
ferry-right according to the common law of England. Every judge in
Massachusetts has held a ferry-right to be an indefeasible
inheritance-a vested right, like any other property. Let us see, if
this is not the fact.

															But before this is done, a reference will be made to acts in the
early history of Massachusetts, which are on the record. There is a
grant of a ferry for twenty-one years. 'At a generall corte held at
Boston, 7th day of 8th month, 1641. It is ordered, that they that
put boats between Cape Ann and Annisquam, shall have liberty to
take sufficient toale, as the court shall think meete.' Is this the
grant merely of a path across the river? So also, there is a grant
of an inheritance in a ferry, on condition that it shall be
submitted to the general court. This grant is contemporaneous with
the grant of the ferry over Charles river.

															'At a generall corte of election, at Boston, the 10th of the 3d
month, A. 1648. Upon certain information given to this generall
corte, that there is no fferry kept upon Naponset ryver, between
Dorchester and Braintree, whereby all that are to pass that way,
are forced to head the river, to the great prejudice of townes that
are in those partes, and that there appears no man that will keepe
it, unlesse he be accommodated with house, land and a boate, at the
charge of the country: It is therefore ordered, by the authority of
this corte, that Mr. John Glover shall, and hereby hath, full power
given him, either to grant it to any person or persons, for the
tearme of seaven yeares, so it be not in any way chargeable to the
country, or else to take it himselfe and his heires, as his own
inheritance for ever; provided, that it be kept in such a place,
and at such a price, as may be most convenient for the country, and
pleasant to the general courte.'

															In the record, there is a copy of a grant of a bridge over
Charles river, near Watertown; the terms of which are, on the
condition of making the bridge, the tolls are granted for ever.
This was in 1670.

															This is the early statute law of Massachusetts. The later acts
of the legislature are of the same character. The instances of such
legislation were cited from 7 Pick. 446-8, 511, 521, 523. In all
these cases, the judges hold the common law of England as to
ferries to be the law of Massachusetts; and that a ferry is an
indefeasible interest, and a franchise and property.

															Mr. Webster then stated a number of cases, in which, when a
bridge had been erected in a place of an existing ferry,
compensation had been made to the owners of the ferry. He insisted,
that upon these authorities, a ferry was as much a property, as
much the object of legal protection, as anything known to the laws
of the land.

															The plaintiffs obtained their property as a purchase of some
extent up and down the river. It is not required now to determine
how far the purchase extended; for the rival bridge erected by the
defendants, is alongside of the Charles River bridge, and is an
interruption to the profits derived from it. It is not necessary
now to fix the limits of the franchise. That the interference is
direct and certain, is not denied. Difficulties may arise hereafter
in fixing these limits, but it is not necessary to go to a distance
to establish them, before a certain, and admitted inference, shall
be examined.

															It is submitted, that, in London, no bridge has been erected
over the river, without compensation having been made to those
whose interests may have been injured. The evidence of this will be
found in many works on the subject. Those treatises show the minute
attention of the British parliament, in all cases in which private
rights may be affected by the enactment of a statute. All persons
who may be interested, have notice from parliament of the
application; and compensation is made, where any injury is
done.

															It is said, that the distinguished honor of maintaining
principles which will arrest the progress of public improvements,
is left to the plaintiffs in this case. This is not so. All that is
asked, is, that the franchise shall be protected. Massachusetts has
not made any improvement of her own, although she has subscribed
liberally to those which have been undertaken by individuals and
corporations. In all these cases, private rights have been
respected; and except in the case now before the court,
Massachusetts has kept her faith. Recent and previous acts by her
legislature show this. In every case, but this, compensation has
been made in the law, or provided for.

															The plaintiffs do not seek to interrupt the progress of
improvements, but they ask to stay revolution; a revolution against
the foundations on which property rests; a revolution which is
attempted on the allegation of monopoly: we resist the clamor
against legislative acts which have vested rights in individuals,
on principles of equal justice to the state, and to those who hold
those rights under the provisions of the law.

															It is true, that before the legislature, the rights of the
plaintiffs were examined, and still the Warren bridge charter was
given; but the decision of a committee of the legislature was not a
judicial action. The plaintiffs have a full right to come before
this court, notwithstanding their failure before the
legislature.

															In reply to some remarks of the counsel of the defendants, Mr.
Webster stated, that the proceedings in England under writs of ad quod damnum , did not affect private rights. The writ of ad quod damnum issues for the honor of the king. It issues
before a grant is made, and for the protection of the king. Private
persons may claim the protection of the law in favor of their
rights, notwithstanding such a proceeding. Questions of nuisance,
are always questions of fact, and must be tried by a jury; but no
jury can assess the amount of injury, until the facts are
ascertained. These principles are sustained in 3 Bl. Com. 219.

															Is it the liberal construction of charters to interrupt them
against the rights of individuals-against the enactments of the
law? The course has been, to construe them in favor of the
grantees, and to enlarge their provisions for his benefit. The
whole of the course is changed, if an opposite principle is
adopted. But the plaintiffs ask no more than a fair judicial
construction of the law; no more is required, but what they are
entitled to, under a judicial interpretation of it.

															It has been said, in the argument for the defendants, that
although the holder of a franchise may maintain an action against a
stranger who interferes with it, without a license; he may not,
against one who has a license from the state. This is without
authority. If he can claim against a stranger, it is because of his
property in the franchise, and this will protect him in proceeding
against any one. This right is complete against all, and the state
can give no privilege to interfere with it.

															In the case of Bonaparte v. Camden and Amboy Railroad
Company , Mr. Justice BALDWIN, sitting in the circuit court of
New Jersey, says: 'The privilege of exemption of the principal is
not communicated to the agent, though the principal is a state
which cannot be sued at law or in equity; and the agent, a public
officer acting in execution of the law of the state, and the
subject-matter of the suit was money actually in their treasury, in
the custody of the defendant for the use of the state.' Bald.
217.

															The proprietors of the Charles River bridge purchased the ferry
franchise from Harvard college, and it became their property, for
the purpose of erecting a bridge upon its site, with all the rights
and advantages to be derived from it. It was purchased, and the
consideration for it was the annual payment of the sum of
200 l. This, by the charter, was to be absolutely paid; and
no accident to the bridge, no deficiency of tolls, will excuse the
non-payment of the sum so stipulated to be paid. Suppose, while the
bridge was building, it had been profitable to use the ferry, would
not the tolls have belonged to the proprietors of the Charles River
bridge? There is no ground to suppose, the college meant to retain
anything out of the franchise. Nothing appears, which will
authorize the supposition, that the state meant to take a transfer
of the franchise, or any part of it; and allowed the use of it to
the bridge, to the extent of putting up the abutments, at the
places where the ferry was carried on. The bridge is the successor
of the college, in the franchise; the company purchased it, to its
full extent, and the state, by the charter, ratified the
purchase.

															The erection of the bridge was an undertaking of great hazard,
and the result of the effort to construct it, was considered
exceedingly doubtful. It cannot, therefore, be supposed that the
franchise was to be diminished, and its enjoyment to be limited.
Nothing of this is expressed, and nothing so unreasonable can be
implied. It is in evidence, on the record, that the college was a
party to the building of the bridge. The president stated, that the
college had assented to it. According to the course of decisions in
Massachusetts, the franchise was an indefeasible inheritance. In
that state, the management of ferries was with the general court.
As to this franchise, from 1640 to 1785, it was respected by the
local authorities of Middlesex and Sussex. It would then appear,
that it was held under a legislative grant, which transcended all
other rights.

															The franchise which was obtained from the college, was not
extinguished by compact; and it cannot, therefore, be disturbed by
any action of the legislature. It is deemed important, and is the
truth of the case, to consider the rights of the Charles River
bridge company, in connection with those of the college. The
college had, and still have, an interest in it; and the use of the
franchise by the company is essential to all the purposes, and to
more than those for which it was held by the college. The pontage
furnished by the bridge, was the substitute for the passage by the
ferry; and it was not, therefore, only for location at the place
where the bridge was built, that the rights of the college were
obtained; all the privileges enjoyed as a part of the ferry
franchise were acquired. When the bridge was put up on the same
place as the ferry had been, and for all the ends of the ferry, it
is but just and reasonable, that the extent of the right shall be
in the hands of the bridge company, equal to that which it was when
held by the college. The views which have been taken, fully show
that the state of Massachusetts made, in the full and rightful
exercise of her legislative powers, a grant to the proprietors of
the Charles River bridge, and the grant was a contract. As such, by
no subsequent legislation, could it be impaired; a right vested,
cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle , 8 Wheat. 1; Fletcher v. Peck , 6 Cranch 136. If a power of revocation existed, it was
no contract. The state cannot make such a contract; as the power of
revocation is incompetent to will the existence of a contract. Can
a stronger case be imagined, than that which gave rise to the
controversy in Fletcher v. Peck? The contract had
been made in fraud; in morals, it was just to burn it; in policy,
it was equally so, as a large part of the domain of the state of
Georgia was granted for no adequate consideration. But this court
decided, in that case, that the legislature of Georgia had no power
to annul the grant; and the grant was maintained by the judgment of
this court.

															The difficulty in which this case in involved, and upon which
the defendants expect success, arises from considering two things
alike, which are different. The power of making public grants,
because the interests of the community require they should be made,
and the right of eminent domain. Where property is taken for public
purposes, compensation is given; this is the exercise of eminent
domain. The legislature are not the judges of the extent of their
powers; and the question now before the court is, whether they had
the power which has been exercised in this particular case. By the
act of the legislature, authorizing the Warren bridge, two injuries
were done to the plaintiffs: first, by the damage they sustained
from a rival bridge; secondly, the infringement of their right of
pontage. The toll had been originally granted for forty years, and
this excluded rivalship. By the interruption of the receipt of
their full tolls, the proprietors of the bridge sustained heavy
losses; and by the erection of the Warren bridge, now a free
bridge, their beneficial right of pontage has been destroyed. In
these, have the contract of the state of Massachusetts been broken.
Thus the case is entirely within the provision of the constitution
of the United States.

															What is the meaning of the assertion, that in a grant by a
government, nothing passes by implication? How is it, in grants of
land? Does a patent from the United States carry less than a grant
by an individual? They are the same-a grant of 'land' carries
'mines.' The principle, that nothing passes by implication, arose
in early times, when the grants of the crown were greater than now;
when they were made to favorites, and the power was abused and when
their extravagance induced courts to restrain them to their words.
Hence the insertion of mero motu' 'certa scientia: hence the
principle, that the grant of one thing shall not carry another. The
doctrine that nothing can be carried by implication in a royal
grant, does not apply to grants by parliament, or of franchises (2
H. Bl. 500): no case but one from 2 Barn. & Ald. 792, has been
cited, to sustain the position. That case is not authority here.
But if the whole of that case is taken together, it is in favor of
the plaintiffs in this cause. The decision is right; although there
is too much strictness in some of the opinions of Lord TENTERDEN.
Franchises are complex in their nature, and all that may be
necessary for their enjoyment, must pass with them, although things
separate do not pass; whatever is incident to them, does not
require implication, to pass such incidents. Thus, the grant of the
ferry to the college, gave the right to take tolls; to keep boats:
cited, 1 Nott & McCord 393.

															It has been said, that this may be good law as to individuals,
but that it will not operate in the case of a state: authorities
for this position are required. If a grantee of a franchise can
sustain an action against an individual, for an injury to his
property, or an interference with his property, why may he not,
against the grantee of the government, who thus interposes? The
case is stronger against the government, than against a stranger.
The government has received the consideration for the grant; and
there is an implied obligation to protect the enjoyment of it.
Ferries are property. They may be seized for rent; they may be
devised by will; they may be sold: and yet it is said, the
government may take them away from their proprietors, for their
grantors. Let us see some principle which will allow such property
to be taken; and which yet regards private property, and respects
private rights and public faith. The right of a ferry carries
tolls; and it also carries, for its protection, the principles of
justice and of law, that the grantee may keep down injurious
competition. It is vain to give him one, without the other; both
must be given, or none is given. The grant is intended as a
benefit, as a remuneration for risks, and for advances of capital,
not as a mere name. The ordinary means of compensation for such
advances are not sufficient; the franchise necessarily implies
exclusive and beneficial privileges.

															It was under this law of ferries, the plaintiffs took their
charter. They considered, that under it, they held the whole extent
of the ferry franchise. There was then but one ferry between
Charlestown and Boston. It had the whole ferry-rights, and this
they acquired; this they have paid for. If a grant refers to
another grant, it carries all which is contained in both. But
suppose, there had been no reference to any other; it would carry
the same rights, and to the same extent, or more. The expense of
erecting a bridge, and keeping it in order, is much greater than
that attending the setting up and keeping in order a ferry. The
promotion of public accommodation is no reason for taking away a
privilege, held under a legal grant. It cannot be done unjustly to
the rights of others; these rights must be respected. The income
derived from these rights shall not be diminished. Suppose, the
bridge had been erected, without an act of the legislature to
authorize it; would a subsequent act protect it? How can a grant to
A. be lawfully impaired, or injuriously affected, by a subsequent
grant to B., which interferes with the enjoyment of the prior
grant? Once granted, always granted.

															What position would a judicial tribunal assume, that would
construe a grant differently, according to the parties to it. Can
you raise an implication against it, and not do so against the
government? Implication is construction-construction is meaning and
when a thing is in the deed, it is the meaning, and force and
purpose of the instrument. If the parties are changed, these cannot
be changed. To allow another bridge to be built, was to take away
the tolls of the first bridge. In support of the position, that
this was a violation of the rights of the plaintiffs, the opinions
of all the judges of the court of Massachusetts, from which the
case is brought, are appealed to. They all say, that the charter
granted by the legislature is binding on it, and cannot be
impaired; and they say, that, to whatever extent the grant goes, it
must be supported. 2 Mass. 146. But the Warren bridge does impair
the charter, for it takes away the tolls. What then becomes of the
reserved rights of the legislature? This is a solemn adjudication
of the court of Massachusetts. Then, there is no reservation.

															There is implication in government grants. This has been so held
in Massachasetts. 4 Mass. 522. It is also the law of this court. Dartmouth College Case , 4 Wheat. 518. The court below held,
in this case, that whatever was granted belonged to the grantee;
that the ferry at Charlestown was granted to the college, and that
the law of England relating to ferries, prevails in Massachusetts;
that nothing can be taken for public use, without compensation;
that public grants are always to be so construed as to convey what
is essential to the enjoyment of the thing granted, and cannot be
superseded, or the grant impaired. In support of these positions,
Mr. Webster read parts of the opinions of the judges of the
superior court of Massachusetts, delivered in this case.

															The proposition is stated, that grants of the character of this
which is held by the plaintiffs, contain a power of revocation.
This cannot be. Being grants, they cannot be treated or considered
as mere laws; being grants, they are contracts. In this case, the
grant was intended to be beneficial to the grantees, and it
contained a covenant that it should continue for forty, and
afterwards for seventy years. For this a consideration was paid,
and is now paid, to the public, by the large expenditure for
constructing the bridge; to Harvard college, by the sum of
200 l. annually. But the legislature have now done everything
to make the grant unproductive-to deprive the holders of all
advantage from it.

															Necessarily, the grant to the proprietors of the Charles River
bridge contained a guarantee of their enjoyment of the privileges
contained in it. Any other construction would be against every
principle upon which the rights of property, derived from public
acts, rests. Suppose, after the grant of a ferry, with a right to
take tolls, and the establishment of it by the grantee, at the
expense of boats, a free ferry had been erected at the same place,
or so contiguous as to destroy the profits of the first ferry, by a
ruinous competition; would this be proper? It is said, that still
the right to take tolls remains in the first franchise. This is
true; and it is then inquired, what injury has been done? No
franchise, it is said, is taken away; all the rights granted
remain; the tolls remain. It is true, the counsel for the
defendants admit that all will pass over the free ferry; but yet
they say the toll-dish of the first grantees is not touched by the
hands of those who have opened the free ferry; the notice of the
rates of tolls to be paid, yet remains. But to all this the
plaintiffs oppose the simple fact. Under the plaintiffs' grant of a
franchise, they possess the constitutional right to keep down all
competition, during the whole time of the charter. This has been
established by an unbroken chain of authorities, for many years;
and this applies to all grants alike, here, as well as in England.
It is a franchise; and every dollar of toll taken at the Warren
bridge, since its erection, and the temporary use as a toll bridge,
is a part of the legal and proper profits of our franchise; and
thus the guarantee, conveyed in grant (as guarantees are
interpreted by the Massachusetts courts), has been broken.

															Mr. Webster then went into a further examination of the argument
of the counsel for the defendants, and into a notice of the
observations which had fallen from them in the defence. The
plaintiffs, it is said, have received compensation enough; their
profits have been already very large; they have had a reasonable
compensation. This is not so. Nothing is reasonable but the
fulfilment of the contract; it is not reasonable, that one party
should judge for themselves, as to compensation; and depart from
the terms of the contract, which is definite and plain in its
meaning.

															There was no extinction, it is argued, of the franchise. The
answer is, that the act authorizing the second bridge expressly
extends the charter, adding thirty years to it; and recites the
consideration the public had received for the same. In this, there
is a guarantee that the state shall pass no law to impair the
contract. It is not true, that we can have no property in the line
of travel, if by that, is meant, in the franchise granted by Gov.
Winthrop and others, the right of transporting passengers from
Boston to Charlestown. The franchise is valuable, because the
transportation was concentrated at the points at which the
plaintiffs' bridge was erected. The construction of the grant to
us, which we demand, it is said, is not valuable. The plaintiffs
say otherwise, and the issue is with this court.

															It is held up as a cause of alarm, that the plaintiffs claim a
perpetual right to this franchise; and that when the charter of
their bridge has expired, they will fall back upon their claim to
the ferry. We do no such thing. When that time comes, it becomes
the property of the state again. Theirs then it is, 'King, Cawdor,
Glamis, all?' And it were to have been wished, that the defendants
could have been content to wait until that time had arrived.

															The analogies of the rights of a tavern, a street, a mill,
&c., have been put in the course of the argument for the
defence. But all these were false analogies; they were not
franchises; not in the grant of the government.

															Then, there is a long argument, based on the alleged policy of
Massachusetts, in regard to public highways. There is nothing, Mr.
Webster argued, in the situation of such matters, in that state,
requiring the adoption of any particular line of policy. The roads
are numerous and excellent, and no trouble is experienced in
maintaining them so. There are no cases requiring any peculiar
policy, nor any great or broad power to be exercised over them.

															This particular case, formed an exception to the usual caution
exercised by Massachusetts, is legislating upon matters of this
kind. Ever since this act passed, nay, within these two years, the
legislature has granted a charter to a company for the erection of
'The Hancock Free Bridge,' near the West Boston bridge, from Boston
to Cambridge; between that avenue and Canal bridge, lower down. The
act prescribes the width; the obligation to attend the draw,
&c.; makes the bridge a free one; the corporation to keep it in
order, &c. For all this, they look for their compensation in
the advanced value of their contiguous property. And in this very
act, that corporation are directed to make compensation to all
owners of real estate, whose property is liable to injury by the
erection of the said bridge; appraisers are to be appointed,
according to a mode pointed out in the act, and if not made
according to their appraisement, then by the decision of a jury of
the country. And a section of the act provides, that its provisions
are to be void, if, before a certain period, the proprietors of the
West Boston bridge shall sell out their bridge, according to the
estimate of appraisers to be appointed by the parties. The language
is, if such proprietors, 'will sell out their bridge and
franchise.' Now, can this be set off by metes and bounds, as
required of us, in relation to our 'franchise?' And so much for the
'policy' and understanding of the legislature of Massachusetts, as
to franchises!

															Again, it is pretended and argued, that the plaintiffs have not
always been uniform in the interpretation of their own rights. On
the contrary, answered Mr. Webster, this same right was set up, on
building the bridge, to the franchise of the ferry, and was then
acknowledged; and the same principle has ever since been recognised
and acted upon, by the legislature, and by the plaintiffs.

															And there was one other subject, which, though it had no bearing
upon the case at bar whatever, had been made a great deal of, in
the argument of defendants' counsel. Some observations upon it had
been advanced, by way of connecting it with the case, of so novel a
kind, as to require, however, some notice. And this was, that in
chartering the Warren bridge, the legislature did but exercise its
power over the eminent domain of the state. This power is described
as being inalienable, and that the state cannot abandon it; nor by
its own covenant or grant, bind itself to alienate or transfer it
in any way. That it cannot tie up its hands in any wise, in regard
to its eminent domain. In the course of the arguments for the
defendants, one of their honors (Mr. Justice STORY), had put a case
to the learned counsel (Mr. Greenleaf), like the following:
Suppose, a railroad corporation receive a charter at the hands of
the state of Massachusetts, in which an express provision was
inserted, that no other road should be granted, during the duration
of the charter, within ten miles of the proposed road. The road is
built and opened. Did he hold, that, notwithstanding that covenant,
a subsequent legislature had the power to grant another road,
within five rods of the first, without any compensation, other than
the faith, thus given by their charter, of the state of
Massachusetts? And the learned counsel had replied that he did so
say, and did so hold! This struck him, as it must have struck the
court, as most startling doctrine. Mr. Greenleaf here stated, that in such a case, the faith
of the state of Massachusetts was pledged to indemnify the parties,
by making full compensation for whatever property the state might
take, and for all the injury which should be done to private
rights. It would not be presumed by this court, that the faith of
the state would be broken. Mr. Webster proceeded to say, that the first question he
wished to put, in relation to the position of the defendants'
counsel, was, how can this power of eminent domain, as thus
construed, be limited to the two sides, merely, of the road? Why
should it not fall upon the road itself, and no compensation follow
to the grantees? It is all alike part and parcel of the same
'eminent domain.' And so, in the case at bar, if that power gives
the right to erect another bridge beside our own, why does it not
give an equal right to take the latter, also?

															Eminent domain is a part of sovereignty, and resides in the
sovereign-in the people; what portion of it is granted to the
legislature, belongs to them; and what is not granted, remains with
the people. Is not the power of eminent domain as well restricted
as any other power? It is restricted by the constitution of the
state, which contains a surrender of it to the government erected
by that constitution. It may be as well regulated and restrained by
provisions in the constitution, as any other power originally in
the people; and its exercise must be according to such provisions.
It is necessary to have a clear idea of what this same power of
eminent domain actually is. What, then, do the counsel for the
defendants mean, when they say that the state cannot transfer its
eminent domain? They certainly do not mean its domains, its
territory, its lands? And here he cited the case of the government
land in the west and north-west, as a proof that that could not be
the meaning of the counsel. They were the eminent domain, in one
sense, of the country; and in that sense, the government can and
does pass them away. But the other sense was, the power, rule,
dominion of the state over its territory. These two ideas must not
be blended in this investigation. The power of the state over its
eminent domain, means the power of government over property, public
or private, under various rules and qualifications. What is meant
by the government's inability to part with its eminent domain? It
can part with the thing, and reserve the power over it, to the
extent of those qualifications already adverted to. Taking public
or private property for public benefit, by the state, is an
exercise of the power of the state over its eminent domain; but
granting a franchise is not an exercise of that power. Cited, Vatt.
p. 173, § 244; p. 70, § 45.

															The legislature may grant franchises. This is done by its
sovereign power. What may it do with those franchises? What power
has it over them, after they have been granted? It may do just what
it is limited to do, and nothing more. It is restrained by the same
instrument which gave it existence from doing more. The question
is, what restrictions on this power are found in the constitution
of Massachusetts; and by a reference to it, the limitation of
legislative powers will be found. The power may be exercised by
taking property, on paying for it. In the constitution, it is
expressly declared, that property shall not be taken by the public,
without its being paid for. In Baldwin's Circuit Court reports, it
is said, that it is incident to the sovereignty of every
government, that it may take private property for public use; but
the obligation to make compensation is concomitant with the right. Bonaparte v. Camden and Amboy Railroad Company , Bald.
220.

															How, then, can this ground, which has been taken for the
defendants, be maintained? The whole pleadings show, that the right
of eminent domain was not involved in this case, when before the
court of Massachusetts. It is too late now to present it. There is
no allegation, that the property of the plaintiffs have been taken,
and compensation made for it. The defendants seem to say, that if
the property of the proprietors of the Charles River bridge has
been taken under the right of eminent domain, the case is without a
remedy. But this is denied. The taking under the privilege of
eminent domain, is limited by the provision, that compensation
shall be made. Nor is it true, that the legislature may not part
with a portion of its right of eminent domain. Thus, in Wilson's
Case , the right to tax lands in the state of New Jersey, was
surrendered by the legislature. State of New Jersey v. Wilson , 7 Cranch 164.

															In conclusion, Mr. Webster said, the plaintiffs have placed
their reliance upon the precedents and authority established by
this honorable court, in the course of the last thirty years, in
support of that construction which secured individual property
against legislative assumption: and that they now asked the
enlightened conscience of this tribunal, if they have not succeeded
in sustaining their complaint, upon legal and constitutional
grounds: if not, they must, as good citizens of this republic,
remain satisfied with the decision of the court.

															TANEY, Ch. J., delivered the opinion of the court.

															The questions involved in this case are of the gravest
character, and the court have given to them the most anxious and
deliberate consideration. The value of the right claimed by the
plaintiffs is large in amount; and many persons may, no doubt, be
seriously affected in their pecuniary interests, by any decision
which the court may pronounce; and the questions which have been
raised as to the power of the several states, in relation to the
corporations they have chartered, are pregnant with important
consequences; not only to the individuals who are concerned in the
corporate franchises, but to the communities in which they exist.
The court are fully sensible, that it is their duty, in exercising
the high powers conferred on them by the constitution of the United
States, to deal with these great and extensive interests, with the
utmost caution; guarding, so far as they have the power to do so,
the rights of property, and at the same time, carefully abstaining
from any encroachment on the rights reserved to the states.

															It appears, from the record, that in the year 1650, the
legislature of Massachusetts granted to the president of Havard
College 'the liberty and power,' to dispose of the ferry from
Charlestown to Boston, by lease or otherwise, in the behalf, and
for the behoof, of the college; and that under that grant, the
college continued to hold and keep the ferry, by its lessees or
agents, and to receive the profits of it, until 1785. In the
last-mentioned year, a petition was presented to the legislature,
by Thomas Russell and others, stating the inconvenience of the
transportation by ferries, over Charles river, and the public
advantages that would result from a bridge; and praying to be
incorporated, for the purpose of erecting a bridge in the place
where the ferry between Boston and Charlestown was then kept.
Pursuant to this petition, the legislature, on the 9th of March
1785, passed an act incorporating a company, by the name of 'The
Proprietors of the Charles River Bridge,' for the purposes
mentioned in the petition. Under this charter, the company were
empowered to erect a bridge, in 'the place where the ferry was then
kept;' certain tolls were granted, and the charter was limited to
forty years from the first opening of the bridge for passengers;
and from the time the toll commenced, until the expiration of this
term, the company were to pay 200l., annually, to Harvard College;
and at the expiration of the forty years, the bridge was to be the
property of the commonwealth; 'saving (as the law expresses it) to
the said college or university, a reasonable annual compensation,
for the annual income of the ferry, which they might have received,
had not the said bridge been erected.'

															The bridge was accordingly built, and was opened for passengers
on the 17th of June 1786. In 1792, the charter was extended to
seventy years from the opening of the bridge; and at the expiration
of that time, it was to belong to the commonwealth. The corporation
have regularly paid to the college the annual sum of 200l. and have
performed all of the duties imposed on them by the terms of their
charter.

															In 1828, the legislature of Massachusetts incorporated a company
by the name of 'The Proprietors of the Warren Bridge,' for the
purpose of erecting another bridge over Charles river. This bridge
is only sixteen rods, at its commencement, on the Charlestown side,
from the commencement of the bridge of the plaintiffs; and they are
about fifty rods apart, at their termination on the Boston side.
The travellers who pass over either bridge, proceed from
Charlestown square, which receives the travel of many great public
roads leading from the country; and the passengers and travellers
who go to and from Boston, used to pass over the Charles River
bridge, from and through this square, before the erection of the
Warren bridge.

															The Warren bridge, by the terms of its charter, was to be
surrendered to the state, as soon as the expenses of the
proprietors in building and supporting it should be reimbursed; but
this period was not, in any event, to exceed six years from the
time the company commenced receiving toll.

															When the original bill in this case was filed, the Warren bridge
had not been built; and the bill was filed, after the passage of
the law, in order to obtain an injunction to prevent its erection,
and for general relief. The bill, among other things, charged as a
ground for relief, that the act for the erection of the Warren
bridge impaired the obligation of the contract between the
commonwealth and the proprietors of the Charles River bridge; and
was, therefore, repugnant to the the constitution of the United
States. Afterwards, a supplemental bill was filed, stating that the
bridge had then been so far completed, that it had been opened for
travel, aud that divers persons had passed over, and thus avoided
the payment of the toll, which would otherwise have been received
by the plaintiffs. The answer to the supplemental bill admitted
that the bridge has been so far completed, that foot passengers
could pass; but denied, that any persons but the workmen and the
superintendents had had passed over, with their consent. In this
state of the pleadings, the cause came on for hearing in the
supreme judicial court for the county of Suffolk, in the
commonwealth of Massachusetts, at November term 1829; and the court
decided, that the act incorporating the Warren bridge, did not
impair the obligation of the contract with the proprietors of the
Charles River bridge, and dismissed the complainants' bill; and the
case is brought here by writ of error from that decision. It is,
however, proper to state, that it is understood, that the state
court was equally divided upon the question; and that the decree
dismissing the bill, upon the ground above stated, was pronounced
by a majority of the court, for the purpose of enabling the
complainants to bring the question for decision before this
court.

															In the argument here, it was admitted, that since the filing of
the supplemental bill, a sufficient amount of toll had been
reserved by the proprietors of the Warren bridge to reimburse all
their expenses, and that the bridge is now the property of the
state, and has been made a free bridge; and that the value of the
franchise granted to the proprietors of the Charles River bridge,
has by this means been entirely destroyed. If the complainants
deemed these facts material, they ought to have been brought before
the state court, by a supplemental bill; and this court, in
pronouncing its judgment, cannot regularly notice them. But in the
view which the court take of this subject, these additional
circumstances would not in any degree influence their decision. And
as they are conceded to be true, and the case has been argued on
that ground, and the controversy has been for a long time
depending, and all parties desire a final end of it; and as it is
of importance to them, that the principles on which this court
decide should not be misunderstood; the case will be treated, in
the opinion now delivered, as if these admitted facts were
regularly before us.

															A good deal of evidence has been offered, to show the nature and
extent of the ferry-right granted to the college; and also to show
the rights claimed by the proprietors of the bridge, at different
times, by virtue of their charter; and the opinions entertained by
committees of the legislature, and others, upon that subject. But
as these circumstances do not affect the judgment of this court, it
is unnecessary to recapitulate them.

															The plaintiffs in error insist, mainly, upon two grounds: 1st.
That by virtue of the grant of 1650, Harvard College was entitled,
in perpetuity, to the right of keeping a ferry between Charlestown
and Boston; that this right was exclusive; and that the legislature
had not the power to establish another ferry on the same line of
travel, because it would infringe the rights of the college; and
that these rights, upon the erection of the bridge in the place of
the ferry, under the charter of 1785, were transferred to, and
became vested in 'The Proprietors of the Charles River Bridge;' and
that under, and by virtue of this transfer of the ferry-right, the
rights of the bridge company were as exclusive in that line of
travel, as the rights of the ferry. 2d. That independently of the
ferry-right, the acts of the legislature of Massachusetts, of 1785
and 1792, by their true construction, necessarily implied, that the
legislature would not authorize another bridge, and especially, a
free one, by the side of this, and placed in the same line of
travel, whereby the franchise granted to the 'Proprietors of the
Charles River Bridge' should be rendered of no value; and the
plaintiffs in error contend, that the grant of the ferry to the
college, and of the charter to the proprietors of the bridge, are
both contracts on the part of the state; and that the law
authorizing the erection of the Warren bridge in 1828, impairs the
obligation of one or both of these contracts.

															It is very clear, that in the form in which this case comes
before us (being a writ of error to a state court), the plaintiffs,
in claiming under either of these rights, must place themselves on
the ground of contract, and cannot support themselves upon the
principle, that the law divests vested rights. It is well settled,
by the decisions of this court, that a state law may be
retrospective in its character, and may divest vested rights, and
yet not violate the constitution of the United States, unless it
also impairs the obligation of a contract. In Satterlee v. Matthewson , 2 Pet. 413, this court, in speaking of the state
law then before them, and interpreting the article in the
constitution of the United States which forbids the states to pass
laws impairing the obligation of contracts, uses the following
language: 'It (the state law) is said to be retrospective; be it
so. But retrospective laws which do not impair the obligation of
contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that
instrument' (the constitution of the United States). And in another
passage in the same case, the court say: 'The objection, however,
most pressed upon the court, and relied upon by the counsel for the
plaintiff in error, was, that the effect of this act was to divest
rights which were vested by law in Satterlee. There is, certainly,
no part of the constitution of the United States, which applies to
a state law of this description; nor are we aware of any decision
of this, or of any circuit court, which has condemned such a law,
upon this ground, provided its effect be not to impair the
obligation of a contract.' The same principles were re-affirmed in
this court, in the late case of Watson and others v. Mercer , decided in 1834 (8 Pet. 110): 'As to the first point
(say the court), it is clear, that this court has no right to
pronounce an act of the state legislature void, as contrary to the
constitution of the United States, from the mere fact, that it
divests antecedent vested rights of property. The constitution of
the United States does not prohibit the states from passing
retrospective laws, generally, but only ex post facto laws.'

															After these solemn decisions of this court, it is apparent, that
the plaintiffs in error cannot sustain themselves here, either upon
the ferry-right, or the charter to the bridge; upon the ground,
that vested rights of property have been divested by the
legislature. And whether they claim under the ferry-right, or the
charter to the bridge, they must show that the title which they
claim, was acquired by contract, and that the terms of that
contract have been violated by the charter to the Warren bridge. In
other words, they must show, that the state had entered into a
contract with them, or those under whom they claim, not to
establish a free bridge at the place where the Warren bridge is
erected. Such, and such only, are the principles upon which the
plaintiffs in error can claim relief in this case.

															The nature and extent of the ferry right granted to Harvard
College, in 1650, must depend upon the laws of Massachusetts; and
the character and extent of this right has been elaborately
discussed at the bar. But in the view which the court take of the
case before them, it is not necessary to express any opinion on
these questions. For, assuming that the grant to Harvard College,
and the charter to the bridge company, were both contracts, and
that the ferry-right was as extensive and exclusive as the
plaintiffs contend for; still they cannot enlarge privileges
granted to the bridge, unless it can be shown, that the rights of
Harvard College in this ferry have, by assignment, or in some other
way, been transferred to the proprietors of the Charles River
bridge, and still remain in existence, vested in them, to the same
extent with that in which they were held and enjoyed by the
college, before the bridge was built.

															It has been strongly pressed upon the court, by the plaintiffs
in error, that these rights are still existing, and are now held by
the proprietors of the bridge. If this franchise still exists,
there must be somebody possessed of authority to use it, and to
keep the ferry. Who could now lawfully set up a ferry, where the
old one was kept? The bridge was built in the same place, and its
abutments occupied the landings of the ferry. The transportation of
passengers in boats, from landing to landing, was no longer
possible; and the ferry was as effectually destroyed, as if a
convulsion of nature had made there a passage of dry land. The
ferry, then, of necessity, ceased to exist, as soon as the bridge
was erected; and when the ferry itself was destroyed, how can
rights which were incident to it, be supposed to survive? The
exclusive privileges, if they had such, must follow the fate of the
ferry, and can have no legal existence without it; and if the
ferry-right had been assigned by the college, in due and legal
form, to the proprietors of the bridge, they themselves
extinguished that right, when they erected the bridge in its place.
It is not supposed by any one, that the bridge company have a right
to keep a ferry. No such right is claimed for them, nor can be
claimed for them, under their charter to erect a bridge; and it is
difficult to imagine, how ferry-rights can be held by a
corporation, or an individual, who have no right to keep a ferry.
It is clear, that the incident must follow the fate of the
principal, and the privilege connected with property cannot survive
the destruction of the property; and if the ferry-right in Harvard
College was exclusive, and had been assigned to the proprietors of
the bridge, the privilege of exclusion could not remain in the
hands of their assignees, if those assignees destroyed the
ferry.

															But upon what ground can the plaintiffs in error contend, that
the ferry-rights of the college have been transferred to the
proprietors of the bridge? If they have been thus transferred, it
must be by some mode of transfer known to the law; and the evidence
relied on to prove it, can be pointed out in the record. How was it
transferred? It is not suggested, that there ever was, in point of
fact, a deed of conveyance executed by the college to the bridge
company. Is there any evidence in the record, from which such a
conveyance may, upon legal principle, be presumed? The testimony
before the court, so far from laying the foundation for such a
presumption, repels it, in the most positive terms. The petition to
the legislature, in 1785, on which the charter was granted, does
not suggest and assignment, nor any agreement or consent on the
part of the college; and the petitioners do not appear to have
regarded the wishes of that institution, as by any means necessary
to insure their success. They place their application entirely on
considerations of public interest and public convenience, and the
superior advantages of a communcation across Charles river, by a
bridge, instead of a ferry. The legislature, in granting the
charter, show, by the language of the law, that they acted on the
principles assumed by the petitioners. The preamble recites, that
the bridge 'will be of great public utility;' and that is the only
reason they assign, for passing the law which incorporates this
company. The validity of the character is not made to depend on the
consent of the college, nor of any assignment or surrender on their
part; and the legislature deal with the subject, as if it were one
exclusively within their own power, and as if the ferry-right were
not to be transferred to the bridge company, but to be
extinguished, and they appear to have acted on the principle, that
the state, by virtue of its sovereign powers and eminent domain,
had a right to take away the franchise of the ferry; because, in
their judgment, the public interest and convenience would be better
promoted by a bridge in the same place; and upon that principle,
they proceed to make a pecuniary compensation to the college, for
the franchise thus taken away: and as there is an express
reservation of a continuing pecuniary compensation to the college,
when the bridge shall become the property of the state, and no
provision whatever for the restoration of the ferry-right, it is
evident, that no such right was intended to be reserved or
continued. The ferry, with all its privileges, was intended to be
for ever at an end, and a compensation in money was given in lieu
of it. The college acquiesced in this arrangement, and there is
proof, in the record, that it was all done with their consent. Can
a deed of assignment to the bridge company, which would keep alive
the ferry-rights in their hands, be presumed, under such
circumstances? Do not the petition, the law of incorporation, and
the consent of the college to the pecuniary provision made for it,
in perpetuity; all repel the notion of an assignment of its rights
to the bridge company, and prove that every party to this
proceeding intended, that its franchises, whatever they were,
should be resumed by the state, and be no longer held by any
individual or corporation? With such evidence before us, there can
be no ground for presuming a conveyance to the plaintiffs. There
was no reason for such a conveyance; there was every reason against
it; and the arrangements proposed by the charter to the bridge,
could not have been carried into full effect, unless the rights of
the ferry were entirely extinguished.

															It is, however, said, that the payment of the 200 l. a
year to the college, as provided for in the law, gives to the
proprietors of the bridge an equitable claim to be treated as the
assignees of their interest; and by substitution, upon chancery
principles, to be clothed with all their rights. The answer to this
argument is obvious. This annual sum was intended to be paid out of
the proceeds of the tolls, which the company were authorized to
collect. The amount of the tolls, it must be presumed, was
graduated with a view to this incumbrance, as well as to every
other expenditure to which the company might be subjected, under
the provisions of their charter. The tolls were to be collected
from the public, and it was intended, that the expense of the
annuity to Harvard College should be borne by the public; and it is
manifest, that it was so borne, from the amount which it is
admitted they received until the Warren bridge was erected. Their
agreement, therefore, to pay that sum, can give them no equitable
right to be regarded as the assignees of the college, and
certainly, can furnish no foundation for presuming a conveyance;
and as the proprietors of the bridge are neither the legal nor
equitable assignees of the college, it is not easy to perceive, how
the ferry franchise can be invoked in aid of their claims, if it
were even still a subsisting privilege, and had not been resumed by
the state, for the purpose of building a bridge in its place.

															Neither can the extent of the pre-existing ferry-right, whatever
it may have been, have any influence upon the construction of the
written charter for the bridge. It does not, by any means, follow,
that because the legislative power of Massachusetts, in 1650, may
have granted to a justly-favored seminary of learning, the
exclusive right of ferry between Boston and Charlestown, they
would, in 1785, give the same extensive privilege to another
corporation, who were about to erect a bridge in the same
place.

															The fact that such a right was granted to the college, cannot,
by any sound rule of construction, be used to extend the privileges
of the bridge company, beyond what the words of the charter
naturally and legally import. Increased population, longer
experience in legislation, the different character of the
corporations which owned the ferry from that which owned the
bridge, might well have induced a change in the policy of the state
in this respect; and as the franchise of the ferry, and that of the
bridge, are different in their nature, and were each established by
separate grants, which have no words to connect the privileges of
the one with the privileges of the other, there is no rule of legal
interpretation, which would authorize the court to associate these
grants together, and to infer that any privilege was intended to be
given to the bridge company, merely because it had been conferred
on the ferry. The charter to the bridge is a written instrument
which must speak for itself, and be interpreted by its own
terms.

															This brings us to the act of the legislature of Massachusetts,
of 1785, by which the plaintiffs were incorporated by the name of
'The Proprietors of the Charles River Bridge;' and it is here, and
in the law of 1792, prolonging their charter, that we must look for
the extent and nature of the franchise conferred upon the
plaintiffs. Much has been said in the argument of the principles of
construction by which this law is to be expounded, and what
undertakings, on the part of the state, may be implied. The court
think there can be no serious difficulty on that head. It is the
grant of certain franchises, by the public, to a private
corporation, and in a matter where the public interest is
concerned. The rule of construction in such cases is well settled,
both in England, and by the decisions of our own tribunals. In the
case of the Proprietors of the Stourbridge Canal v. Wheeley and others , 2 B. & Ad. 793, the court say, 'the
canal having been made under an act of parliament, the rights of
the plaintiffs are derived entirely from that act. This, like many
other cases, is a bargain between a company of adventurers and the
public, the terms of which are expressed in the statute; and the
rule of construction in all such cases, is now fully established to
be this-that any ambiguity in the terms of the contract, must
operate against the adventurers, and in favor of the public, and
the plaintiffs can claim nothing that is not clearly given them by
the act.' And the doctrine thus laid down in abundantly sustained
by the authorities referred to in this decision. The case itself
was as strong a one as could well be imagined, for giving to the
canal company, by implication, a right to the tolls they demanded.
Their canal had been used by the defendants, to a very considerable
extent, in transporting large quantities of coal. The rights of all
persons to navigate the canal, were expressly secured by the act of
parliament; so that the company could not prevent them from using
it, and the toll demanded was admitted to be reasonable. Yet, as
they only used one of the levels of the canal, and did not pass
through the locks; and the statute, in giving the right to exact
toll, had given it for articles which passed 'through any one or
more of the locks,' and had said nothing as to toll for navigating
one of the levels; the court held, that the right to demand toll,
in the latter case, could not be implied, and that the company were
not entitled to recover it. This was a fair case for an equitable
construction of the act of incorporation, and for an implied grant,
if such a rule of construction could ever be permitted in a law of
that description. For the canal had been made at the expense of the
company; the defendants had availed themselves of the fruits of
their labors, and used the canal freely and extensively for their
own profit. Still, the right to exact toll could not be implied,
because such a privilege was not found in the charter.

															Borrowing, as we have done, our system of jurisprudence from the
English law; and having adopted, in every other case, civil and
criminal, its rules for the construction of statutes; is there
anything in our local situation, or in the nature of our political
institutions, which should lead us to depart from the principle,
where corporations are concerned? Are we to apply to acts of
incorporation, a rule of construction differing from that of the
English law, and, by implication, make the terms of a charter, in
one of the states, more unfavorable to the public, than upon an act
of parliament, framed in the same words, would be sanctioned in an
English court? Can any good reason be assigned, for excepting this
particular class of cases from the operation of the general
principle; and for introducing a new and adverse rule of
construction, in favor of corporations, while we adopt and adhere
to the rules of construction known to the English common law, in
every other case, without exception? We think not; and it would
present a singular spectacle, if, while the courts in England are
restraining, within the strictest limits, the spirit of monopoly,
and exclusive privileges in nature of monopolies, and confining
corporations to the privileges plainly given to them in their
charter; the courts of this country should be found enlarging these
privileges by implication; and construing a statute more
unfavorably to the public, and to the rights of community, than
would be done in a like case in an English court of justice.

															But we are not now left to determine, for the first time, the
rules by which public grants are to be construed in this country.
The subject has already been considered in this court; and the rule
of construction, above stated, fully established. In the case of
the United States v. Arredondo , 8 Pet. 738, the
leading cases upon this subject are collected together by the
learned judge who delivered the opinion of the court; and the
principle recognised, that in grants by the public, nothing passes
by implication. The rule is still more clearly and plainly stated
in the case of Jackson v. Lamphire , 3 Pet. 289. That
was a grant of land by the state; and in speaking of this doctrine
of implied covenants, in grants by the state, the court use the
following language, which is strikingly applicable to the case at
bar: 'The only contract made by the state, is the grant to John
Cornelius, his heirs and assigns, of the land in question. The
patent contains no covenant to do, or not to do, any further act in
relation to the land; and we do not feel ourselves at liberty, in
this case, to create one by implication. The state has not, by this
act, impaired the force of the grant; it does not profess or
attempt to take the land from the assigns of Cornelius, and gave it
to one not claiming under him; neither does the award produce that
effect; the grant remains in full force; the property conveyed is
held by his grantee, and the state asserts no claim to it.' The
same rule of construction is also stated in the case of Beaty v. Lessee of Knowler , 4 Pet. 168, decided in
this court in 1830. In delivering their opinion in that case, the
court say: 'That a corporation is strictly limited to the exercise
of those powers which are specifically conferred on it, will not be
denied. The exercise of the corporate franchise being restrictive
of individual rights, cannot be extended beyond the letter and
spirit of the act of incorporation.'

															But the case most analogous to this, and in which the question
came more directly before the court, is the case of the Providence Bank v. Billings , 4 Pet. 514, which was
decided in 1830. In that case, it appeared, that the legislature of
Rhode Island had chartered the bank, in the usual form of such acts
of incorporation. The charter contained no stipulation on the part
of the state, that it would not impose a tax on the bank, nor any
reservation of the right to do so. It was silent on this point.
Afterwards, a law was passed, imposing a tax on all banks in the
state; and the right to impose this tax was resisted by the
Providence Bank, upon the ground, that if the state could impose a
tax, it might tax so heavily as to render the franchise of no
value, and destroy the institution; that the charter was a
contract, and that a power which may in effect destroy the charter
is inconsistent with it, and is impliedly renounced by granting it.
But the court said, that the taxing power was of vital importance,
and essential to the existence of government; and that the
relinquishment of such a power is never to be assumed. And in
delivering the opinion of the court, the late chief justice states
the principle, in the following clear and emphatic language.
Speaking of the taxing power, he says, 'as the whole community is
interested in retaining it undiminished, that community has a right
to insist that its abandonment ought not to be presumed, in a case
in which the deliberate purpose of the state to abandon it does not
appear.' The case now before the court is, in principle, precisely
the same. It is a charter from a state; the act of incorporation is
silent in relation to the contested power. The argument in favor of
the proprietors of the Charles River bridge, is the same, almost in
words, with that used by the Providence Bank; that is, that the
power claimed by the state, if it exists, may be so used as to
destroy the value of the franchise they have granted to the
corporation. The argument must receive the same answer; and the
fact that the power has been already exercised, so as to destroy
the value of the franchise, cannot in any degree affect the
principle. The existence of the power does not, and cannot, depend
upon the circumstance of its having been exercised or not.

															It may, perhaps, be said, that in the case of the Providence
Bank, this court were speaking of the taxing power; which is of
vital importance to the very existence of every government. But the
object and end of all government is to promote the happiness and
prosperity of the community by which it is established; and it can
never be assumed, that the government intended to diminish its
power of accomplishing the end for which it was created. And in a
country like ours, free, active and enterprising, continually
advancing in numbers and wealth, new channels of communication are
daily found necessary, both for travel and trade, and are essential
to the comfort, convenience and prosperity of the people. A state
ought never to be presumed to surrender this power, because, like
the taxing power, the whole community have an interest in
preserving it undiminished. And when a corporation alleges, that a
state has surrendered, for seventy years, its power of improvement
and public accommodation, in a great and important line of travel,
along which a vast number of its citizens must daily pass, the
community have a right to insist, in the language of this court,
above quoted, 'that its abandonment ought not to be presumed, in a
case, in which the deliberate purpose of the state to abandon it
does not appear.' The continued existence of a government would be
of no great value, if, by implications and presumptions, it was
disarmed of the powers necessary to accomplish the ends of its
creation, and the functions it was designed to perform, transferred
to the hands of privileged corporations. The rule of construction
announced by the court, was not confined to the taxing power, nor
is it so limited, in the opinion delivered. On the contrary, it was
distinctly placed on the ground, that the interests of the
community were concerned in preserving, undiminished, the power
then in question; and whenever any power of the state is said to be
surrendered or diminished, whether it be the taxing power, or any
other affecting the public interest, the same principle applies,
and the rule of construction must be the same. No one will
question, that the interests of the great body of the people of the
state, would, in this instance, be affected by the surrender of
this great line of travel to a single corporation, with the right
to exact toll, and exclude competition, for seventy years. While
the rights of private property are sacredly guarded, we must not
forget, that the community also have rights, and that the happiness
and well-being of every citizen depends on their faithful
preservation.

															Adopting the rule of construction above stated as the settled
one, we proceed to apply it to the charter of 1785, to the
proprietors of the Charles River bridge. This act of incorporation
is in the usual form, and the privileges such as are commonly given
to corporations of that kind. It confers on them the ordinary
faculties of a corporation, for the purpose of building the bridge;
and establishes certain rates of toll, which the company are
authorized to take: this is the whole grant. There is no exclusive
privilege given to them over the waters of Charles river, above or
below their bridge; no right to erect another bridge themselves,
nor to prevent other persons from erecting one, no engagement from
the state, that another shall not be erected; and no undertaking
not to sanction competition, nor to make improvements that may
diminish the amount of its income. Upon all these subject, the
charter is silent; and nothing is said in it about a line of
travel, so much insisted on in the argument, in which they are to
have exclusive privileges. No words are used, from which an
intention to grant any of these rights can be inferred; if the
plaintiff is entitled to them, it must be implied, simply, from the
nature of the grant; and cannot be inferred, from the words by
which the grant is made.

															The relative position of the Warren bridge has already been
described. It does not interrupt the passage over the Charles River
bridge, nor make the way to it, or from it, less convenient. None
of the faculties or franchises granted to that corporation, have
been revoked by the legislature; and its right to take the tolls
granted by the charter remains unaltered. In short, all the
franchises and rights of property, enumerated in the charter, and
there mentioned to have been granted to it, remain unimpaired. But
its income is destroyed by the Warren bridge; which, being free,
draws off the passengers and property which would have gone over
it, and renders their franchise of no value. This is the gist of
the complainant; for it is not pretended, that the erection of the
Warren bridge would have done them any injury, or in any degree
affected their right of property, if it had not diminished the
amount of their tolls. In order, then, to entitle themselves to
relief, it is necessary to show, that the legislature contracted
not to do the act of which they complain; and that they impaired,
or in other words, violated, that contract, by the erection of the
Warren bridge.

															The inquiry, then, is, does the charter contain such a contract
on the part of the state? Is there any such stipulation to be found
in that instrument? It must be admitted on all hands, that there is
none; no words that even relate to another bridge, or to the
diminution of their tolls, or to the line of travel. If a contract
on that subject can be gathered from the charter, it must be by
implication; and cannot be found in the words used. Can such an
agreement be implied? The rule of construction before stated is an
answer to the question: in charters of this description, no rights
are taken from the public, or given to the corporation, beyond
those which the words of the charter, by their natural and proper
construction, purport to convey. There are no words which import
such a contract as the plaintiffs in error contend for, and none
can be implied; and the same answer must be given to them that was
given by this court to Providence Bank. The whole community are
interested in this inquiry, and they have a right to require that
the power of promoting their comfort and convenience, and of
advancing the public prosperity, by providing safe, convenient and
cheap ways for the transportation of produce, and the purposes of
travel, shall not be construed to have been surrendered or
diminished by the state; unless it shall appear by plain words,
that it was intended to be done.

															But the case before the court is even still stronger against any
such implied contract, as the plaintiffs in error contend for. The
Charles River bridge was completed in 1786; the time limited for
the duration of the corporation, by their original charter, expired
in 1826. When, therefore, the law passed authorizing the erection
of the Warren bridge, the proprietors of Charles River bridge held
their corporate existence under the law of 1792, which extended
their charter for thirty years; and the rights, privileges and
franchises of the company, must depend upon the construction of the
last-mentioned law, taken in connection with the act of 1785.

															The act of 1792, which extends the charter of this bridge,
incorporates another company, to build a bridge over Charles river;
furnishing another communication with Boston, and distant only
between one and two miles from the old bridge. The first six
sections of this act incorporate the proprietors of the West Boston
bridge, and define the privileges, and describe the duties of that
corporation. In the 7th section, there is the following recital:
'And whereas, the erection of Charles River bridge was a work of
hazard and public utility, and another bridge in the place of West
Boston bridge may diminish the emoluments of Charles River bridge;
therefore, for the encouragement of enterprise,' they proceed to
extend the charter of the Charles River bridge, and to continue it
for the term of seventy years from the day the bridge was
completed; subject to the conditions prescribed in the original
act, and to be entitled to the same tolls. It appears, then, that
by the same act that extended this charter, the legislature
established another bridge, which they knew would lessen its
profits; and this, too, before the expiration of the first charter,
and only seven years after it was granted; thereby showing, that
the state did not suppose, that, by the terms it had used in the
first law, it had deprived itself of the power of making such
public improvements as might impair the profits of the Charles
River bridge; and from the language used in the clauses of the law
by which the charter is extended, it would seem, that the
legislature were especially careful to exclude any inference that
the extension was made upon the ground of compromise with the
bridge company, or as a compensation for rights impaired. On the
contrary, words are cautiously employed to exclude that conclusion;
and the extension is declared to be granted as a reward for the
hazard they had run, and 'for the encouragement of enterprise.' The
extension was given, because the company had undertaken and
executed a work of doubtful success; and the improvements which the
legislature then contemplated, might diminish the emoluments they
had expected to receive from it.

															It results from this statement, that the legislature, in the
very law extending the charter, asserts its rights to authorize
improvements over Charles river which would take off a portion of
the travel from this bridge and diminish its profits; and the
bridge company accept the renewal thus given, and thus carefully
connected with this assertion of the right on the part of the
state. Can they, when holding their corporate existence under this
law, and deriving their franchises altogether from it, add to the
privileges expressed in their charter, an implied agreement, which
is in direct conflict with a portion of the law from which they
derive their corporate existence? Can the legislature be presumed
to have taken upon themselves an implied obligation, contrary to
its own acts and declarations contained in the same law? It would
be difficult to find a case justifying such an implication, even
between individuals; still less will it be found, where sovereign
rights are concerned, and where the interests of a whole community
would be deeply affected by such an implication. It would, indeed,
be a strong exertion of judicial power, acting upon its own views
of what justice required, and the parties ought to have done, to
raise, by a sort of judicial coercion, an implied contract, and
infer it from the nature of the very instrument in which the
legislature appear to have taken pains to use words which disavow
and repudiate any intention, on the part of the state, to make such
a contract.

															Indeed, the practice and usage of almost every state in the
Union, old enough to have commenced the work of internal
improvement, is opposed to the doctrine contended for on the part
of the plaintiffs in error. Turnpike roads have been made in
succession, on the same line of travel; the later ones interfering
materially with the profits of the first. These corporations have,
in some instances, been utterly ruined by the introduction of newer
and better modes of transportation and travelling. In some cases,
railroads have rendered the turnpike roads on the same line of
travel so entirely useless, that the franchise of the turnpike
corporation is not worth preserving. Yet in none of these cases
have the corporation supposed that their privileges were invaded,
or any contract violated on the part of the state. Amid the
multitude of cases which have occurred, and have been daily
occurring, for the last forty or fifty years, this is the first
instance in which such an implied contract has been contended for,
and this court called upon to infer it, from an ordinary act of
incorporation, containing nothing more than the usual stipulations
and provisions to be found in every such law. The absence of any
such controversy, when there must have been so many occasions to
give rise to it, proves, that neither states, nor individuals, nor
corporations, ever imagined that such a contract could be implied
from such charters. It shows, that the men who voted for these
laws, never imagined that they were forming such a contract; and if
we maintain that they have made it, we must create it by a legal
fiction, in opposition to the truth of the fact, and the obvious
intention of the party. We cannot deal thus with the rights
reserved to the states; and by legal intendments and mere technical
reasoning, take away from them any portion of that power over their
own internal police and improvement, which is so necessary to their
well-being and prosperity.

															And what would be the fruits of this doctrine of implied
contracts, on the part of the states, and of property in a line of
travel, by a corporation, if it would now be sanctioned by this
court? To what results would it lead us? If it is to be found in
the charter to this bridge, the same process of reasoning must
discover it, in the various acts which have been passed, within the
last forty years, for turnpike companies. And what is to be the
extent of the privileges of exclusion on the different sides of the
road? The counsel who have so ably argued this case, have not
attempted to define it by any certain boundaries. How far must the
new improvement be distant from the old one? How near may you
approach, without invading its rights in the privileged line? If
this court should establish the principles now contended for, what
is to become of the numerous railroads established on the same line
of travel with turnpike companies; and which have rendered the
franchises of the turnpike corporations of no value? Let it once be
understood, that such charters carry with them these implied
contracts, and give this unknown and undefined property in a line
of travelling; and you will soon find the old turnpike corporations
awakening from their sleep, and calling upon this court to put down
the improvements which have taken their place. The millions of
property which have been invested in railroads and canals, upon
lines of travel which had been before occupied by turnpike
corporations, will be put in jeopardy. We shall be thrown back to
the improvements of the last century, and obliged to stand still,
until the claims of the old turnpike corporations shall be
satisfied; and they shall consent to permit these states to avail
themselves of the lights of modern science, and to partake of the
benefit of those improvements which are now adding to the wealth
and prosperity, and the convenience and comfort, of every other
part of the civilized world. Nor is this all. This court will find
itself compelled to fix, by some arbitrary rule, the width of this
new kind of property in a line of travel; for if such a right of
property exists, we have no lights to guide us in marking out its
extent, unless, indeed, we resort to the old feudal grants, and to
the exclusive rights of ferries, by prescription, between towns;
and are prepared to decide that when a turnpike road from one town
to another, had been made, no railroad or canal, between these two
points, could afterwards be established. This court are not
prepared to sanction principles which must lead to such
results.

															Many other questions, of the deepest importance, have been
raised and elaborately discussed in the argument. It is not
necessary, for the decision of this case, to express our opinion
upon them; and the court deem it proper to avoid volunteering an
opinion on any question, involving the construction of the
constitution, where the case itself does not bring the question
directly before them, and make it their duty to decide upon it.
Some questions, also, of a purely technical character, have been
made and argued, as to the form of proceeding and the right to
relief. But enough appears on the record, to bring out the great
question in contest; and it is the interest of all parties
concerned, that the real controversy should be settled, without
further delay: and as the opinion of the court is pronounced on the
main question in dispute here, and disposes of the whole case, it
is altogether unnecessary to enter upon the examination of the
forms of proceeding, in which the parties have brought it before
the court.

															The judgment of the supreme judicial court of the commonwealth
of Massachusetts, dismissing the plaintiffs' bill, must, therefore,
be affirmed, with costs.

															McLEAN, Justice.

															This suit in chancery was commenced in the suprime court of
Massachusetts, where the bill was dismissed, by a decree pro
forma , the members of that court being equally divided in
opinion; and a writ of error was taken to this court, on the
ground, that the right asserted by the complainants, and which has
been violated, under the charter of the respondents, is protected
by a special provision in the federal constitution.

															The complainants' right is founded on an act of the legislature
of Massachusetts, passed March 9th, 1785, which incorporated
certain individuals, and authorized them to erect a bridge over
Charles river, a navigable stream between Boston and Charlestown,
and an amendatory act, passed in 1791, extending the charter thirty
years. As explanatory of this right, if not the ground on which it
in part rests, a reference is made to an ancient ferry, over the
same river, which was held by Harvard College; and the right of
which was transferred, it is contended, in equity, if not in law,
to the bridge company. The wrong complained of, consists in the
construction of a new bridge, over the same river, under a recent
act of the legislature, within a few rods of the old one, and which
takes away the entire profits of the old bridge.

															The act to establish the Charles River bridge required it to be
constructed within a limited time, of certain dimensions, to be
kept in repair, and to afford certain specified accommodations to
the public. The company were authorized to charge certain rates of
toll; and they were required to pay, annually, 200 l. to
Harvard College. The first charter was granted for forty years. The
facts proved in the case show that a bridge of the description
required by the act of 1785, was constructed within the time
limited; that the annual payment has been made to the college; and
that, in every other respect, the corporation has faithfully
performed the conditions and duties enjoined on it.

															It is contended, that the charter granted to the respondents,
violates the obligation of that which had been previously granted
to the complainants; and that, consequently, it is in conflict with
that provision of the constitution which declares, that no 'state
shall pass any law impairing the obligation of contracts.'

															In the investigation of this case, the first inquiry which seems
naturally to arise is, as to the nature and extent of the right
asserted by the complainants. As early as the year 1631, a ferry
was established across Charles river, by the colonial government of
Massachusetts Bay. In 1640, the general court say, 'that the ferry
is granted to the college.' From this time, the profits of the
ferry were received by the college, and it was required, by various
statutes, under certain penalties, to keep certain boats, &c.,
for the accommodation of the public. This duty was performed by the
college; and it continued to occupy the ferry until the Charles
River bridge was constructed.

															From the above act of the general court, and others which have
been shown, and the unmolested use of the ferry for more than 140
years, by the college, it would seem, that its right to this use
had received all the sanctions necessary to constitute a valid
title. If the right was not founded strictly on prescription, it
rested on a basis equally unquestionable. At the time this ferry
was established, it was the only public communication between
Boston and Charlestown. These places, and especially the latter,
were then small; and no greater accommodation was required than was
afforded by the ferry. Its franchise was not limited, it is
contended, to the ferry-was; but extended to the whole line of
travel between the two towns.

															It cannot be very material to inquire, whether this ferry was
originally public or private property; or whether the landing
places were vested in the college, or their use only, and the
profits of the ferry. The beneficial interest in the ferry was held
by the college, and it received the tolls. The regulation of the
ferry, it being a matter of public concern, belonged to the
government. It prescibed the number of boats to be kept, and the
attendance necessary to be given; and on a failure to comply with
these requisitions, the college would have been subjected to the
forfeiture of the franchise, and the other penalties provided by
statute. Was this right of ferry, with all its immunities,
transferred to the Charles River bridge company?

															It is not contended, that there is any express assignment of
this right, by deed or otherwise; but the complainants claim, that
the evidence of the transfer is found in the facts of the case.
Before the charter was granted, the college was consulted on the
subject; as soon as the bridge was constructed, the use of the
ferry ceased; and the college has regularly received from the
complainants the annuity of 200 l. This acquiescence, it is
contended, taken in connection with the other facts in the case,
goes to establish the relinquishment of the right to the ferry, for
the annual compensation required to be paid under the charter. That
there was a substitution of the bridge for the ferry, with the
consent of the college, is evident; but there seems to have been no
assignment of the rights of the ferry. The original bridge charter
was granted for forty years; at the expiration of which period, the
property of the bridge was to revert to the commonwealth, 'saving
to the college a reasonable and annual compensation for the annual
income of the ferry, which they might have received, had not said
bridge been erected.' Had the bridge been destroyed by fire or
otherwise, there was no investiture of right to the ferry in the
complainants, that would have enabled them to keep up the ferry,
and realize the profits of it. On the destruction of the bridge,
the college, it is presumed, might have resumed all the rights and
responsibilities attached to the ferry. At least, it is very clear,
that these rights and responsibilities would not have devolved on
the complainants. They stipulated to afford a different
accommodation to the public. If, then, these rights could not have
been claimed and exercised by the complainants, under such
circumstances; how can they be considered as enlarging, or in any
way materially affecting, the franchise under the charter of
1785?

															That the franchise of a ferry, at common law, and in the state
of Massachusetts, extends beyond the landing places, is very clear
from authority. 10 Petersd. 53; 13 Vin. 513; Willes 512 Note; 12
East 330; 6 Barn. & Cres. 703; Year Book, Hen. Vi. 22; Roll.
Abr. 140; Fitzh. 428 n; Com. Dig. Market, C. 2; Piscary, B.; Action
on the Case, A.; 3 Bl. Com. 219; 1 Nott & McCord 387; 2 Saund.
172; 6 Mod. 229; 2 Vent. 344; 3 Lev. 220; Com. Dig. Patent, F. 4-7;
2 Saund. 72, n. 4; 2 Inst. 406; Chit. Prerog. 12, ch. 3; 10, ch. 2;
3 Salk. 198; Willes 512; 4 T. R. 666; Saund. 114; Cro. Eliz.
710.

															The annuity given to the college was a compensation for the
profits of the ferry; and shows a willingness by the college to
suspend its rights to the ferry, during the time specified in the
act. And if, indeed, it might be construed into an abandonment of
the ferry, still it was an abandonment to the public, on the terms
specified, for a better accommodation. The bridge was designed not
only to answer all the purposes of the ferry, but to enlarge the
public convenience. The profits contemplated by the corporators,
were not only those which had been realized from the ferry, but
such as would arise from the increased facilities to the
public.

															If there was no assignment of the ferry franchise to the
complainants, its extent cannot be a matter of importance in this
investigation; nor is it necessary to inquire into the effect of an
assignment, under the circumstances of the case, if it had been
made. There is no provision in the act of incorporation, vesting
the company with the privileges of the ferry. A reference is made
to it merely with the view of fixing the site of the bridge. The
right and obligations of the complainants must be ascertained by
the construction of the act of 1785.

															This act must be considered in the light of a contract, and the
law of contracts applies to it. In one sense, it is a law, having
passed through all the forms of legislation, and received the
necessary sanctions; but it is essentially a contract, as to the
obligation imposed by it, and the privileges it confers.

															Much discussion has been had at the bar, as to the rule of
construing a charter or grant, and many authorities have been
referred to on this point. In ordinary cases, a grant is construed
favorable to the grantee, and against the grantor. But it is
contended, that in governmental grants, nothing is taken by
implication. The broad rule, thus laid down, cannot be sustained by
authority. If an office be granted by name, all the immunities of
that office are taken by implication. Whatever is essential to the
enjoyment of the thing granted, must be taken by implication. And
this rule holds good, whether the grant emanate from the royal
prerogative of the king, in England, or under an act of
legislation, in this country. The general rule is, that 'a grant of
the king, at the suit of the grantee, is to be construed most
beneficially for the king, and most strictly against the grantee;'
but grants obtained as a matter of special favor of the king, or on
a consideration, are more liberally construed. Grnats of limited
political powers are construed strictly. Com. Dig. tit. Grant, E.
5; 2 Dane's Abr. 683; Stark v. McGowan , 1 Nott &
McCord 387; Poph. 79; Moore 474; 8 Co. 92; 6 Barn. & Cres. 703;
5 Ibid. 875; 3 M. & S. 247; Hargrave 18-23; Angel on Tide
Waters 106-7; 4 Burr. 2161; 4 T. R. 439; 2 Bos. & Pul. 472; 1
T. R. 669; 1 Conn. 382; 17 Johns. 195; 3 M. & S. 247; 6 Mass.
437; 1 Ibid. 231; 17 Ibid. 289; Angel 108; 4 Mass. 140, 522; Plowd.
336-7; 9 Co. 30; 1 Vent. 409; Cro. Jac. 179; Dyer 30; Saville 132;
10 Co. 112; Com. Dig. Grant, 9, 12; Bac. Abr. tit. Prerog. 2; 5
Barn. & Cres. 875; 1 Mass. 356.

															Where the legislature, with a view of advancing the public
interest by the construction of a bridge, a turnpike-road, or any
other work of public ntility, grants a charter, no reason is
perceived, why such a charter should not be construed by the same
rule that governs contracts between individuals. The public,
through their agent, enter into the contract with the company; and
a valuable consideration is received in the construction of the
contemplated improvement. This consideration is paid by the
company, and sound policy requires, that its rights should be
ascertained and protected, by the same rules as are applied to
private contracts.

															In the argument, great reliance was placed on the case of the Stourbridge Canal v. Wheeley and others , 2 Barn.
& Ald. 792. The question in this case was, whether the
plaintiffs had a right to charge toll in certain cases; and Lord
TENTERDEN said, 'the canal having been made under the provisions of
an act of parliament, the rights of the plaintiff are derived
entirely from that act. This, like many other cases, is a bargain
between a company of adventurers and the public, the terms of which
are expressed in the statute; and the rule of construction in all
such cases, is now fully established to be this-that any ambiguity
in the terms of the contract must operate against the adventurers,
and in favor of the public; and the plaintiffs can claim nothing
which is not clearly given to them by the act.' This is relied on
to show, that nothing is taken, under such a grant, by implication
or inference. His lordship says, the right must be clearly given-he
does not say expressly given, which would preclude all inference.
In another part of the same opinion, his lordship says, 'Now, it is
quite certain, that the company have no right, expressly given, to receive any compensation, except the tonnage paid for
goods carried through some of the locks on the canal, or the
collateral cuts; and it is, therefore, incumbent upon them to show
that they have a right, clearly given, by inference, from
some of the other clauses.' May this right be shown by inference; and is not this implication? The doctrine laid
down in this case, is simply this: that the right to charge the
toll, must be given expressly, or it must be clearly made out by
inference. Does not this case establish the doctrine of
implication, as applied to the construction of grants? Is it not
the right to pass by-laws incident to a corporation? A right cannot
be claimed by a corporation, under ambiguous terms; it must clearly
appear to have been granted, either in express term, or by
inference, as stated by Lord TENTERDEN.

															A corporate power to impose a tax on the land of the company, as
considered in the case of Beaty v. Lessee of Knowler ,
4 Pet. 168, must, in its nature, be strictly construed; and so, in
all cases where corporate powers-in the nature of legislation, are
exercised. In that case, the directors were authorized to impose a
tax, under certain circumstances; and the court held, that they had
no power to impose the tax, under other circumstances.

															Charles river being a navigable stream, any obstructions to its
navigation, by the erection of a bridge, or any other work, would
have been punishable, unless authorized by law. By the act of 1785,
the complainants were authorized to build the bridge, elect their
officers, &c., and charge certain rates of toll. The power to
tax passengers, was the consideration on which the expense of
building the bridge, lighting it, &c., and keeping it in
repair, was incurred. The grant, then, of tolls, was the essential
part of the franchise. That course of reasoning which would show
the consideration to consist in anything short of this power to
tax, and the profit arising therefrom, is too refined for practical
purposes. The builders of the bridge had, no doubt, a desire to
increase the public accommodation; but they looked chiefly to a
profitable investment of their funds; and that part of the charter
which secured this object, formed the consideration on which the
work was performed.

															But it is said, there was no exclusive right given; and that,
consequently, the legislature might well cause another bridge to be
built, whenever, in their opinion, the public convenience required
it. On the other hand, it is insisted, that the franchise of the
bridge was as extensive as that of the ferry; and that the grant of
this franchise having been made by the legislature, it had no power
to grant a part of it to the new bridge. That this part of the case
presents considerations of great importance, and of much
difficulty, cannot be denied. To inquire into the validity of a
solemn act of legislation is, at all times, a task of much
delicacy; but it is peculiarly so, when such inquiry is made by a
federal tribunal, and relates to the act of a state legislature.
There are cases, however, in the investigation of which such an
inquiry becomes a duty; and then no court can shrink, or desire to
shrink, from its performance. Under such circumstances, this duty
will always be performed with the high respect due to a branch of
the government, which, more than any other, is clothed with
discretionary powers, and influenced by the popular will.

															The right granted to the Charles River bridge company, is, in
its nature, to a certain extent, exclusive; but to measure this
extent, presents the chief difficulty. If the boundaries of this
right could be clearly established, it would scarcely be contended
by any one, that the legislature could, without compensation, grant
to another company the whole, or any part of it. As well might it
undertake to grant a tract of land, although an operative grant had
been previously made for the same land. In such a case, the second
grant would be void, on the ground, that the legislature had parted
with the entire interest in the premises. As agent of the public,
it has passed the title to the first grantee; and having done so,
it could convey no right by its second grant. The principle is the
same in regard to the question under consideration. If the
franchise granted to the complainants extended beyond the new
bridge, it was as much above the power of the legislature to make
the second grant, as it would be to grant a part of a tract of land
for which a patent had been previously and regularly issued. The
franchise, though incorporeal, in legal contemplation, has body and
extension; and having been granted, is not less scrupulously
guarded by the principles of law, than an interest in the soil. It
is a substantive right in law, and can no more be resumed by the
legislature, when once granted, than any other right.

															But would it not be unsafe, it is suggested, for the judicial
authority to interpose and limit this exercise of legislative
discretion? The charter of the Warren bridge, it is said, was not
hastily granted; that all the circumstances of the case, year after
year, were duly examined by the legislature; and at last, the act
of incorporation was passed, because, in the judgment of the
legislature, the public accommodation required it; and it is
insisted, that the grant to the complainants was necessarily
subject to the exercise of this discretion.

															It is, undoubtedly, the province of the legislature to provide
for the public exigencies, and the utmost respect is always due to
their acts; and the validity of those acts can only be questioned
judicially, where they infringe upon private rights. At the time
the Charles River bridge was built, the population of Boston and
Charlestown was small in comparison with their present numbers; and
it is probable, that the increase has greatly exceeded any
calculation made at the time. The bridge was sufficient to
accommodate the public; and it was, perhaps, believed, that it
would be sufficient, during the time limited in the charter. If,
however, the increased population and intercourse between these
towns and the surrounding country, required greater accommodation
than was afforded by the bridge, there can be no doubt, that the
legislature could make provision for it.

															On the part of the complainants' counsel, it is contended, if
increased facilities of intercourse between these places were
required by the public, the legislature was bound in good faith to
give the option to the Charles River bridge company, either to
enlarge their bridge, or construct a new one, as might be required.
And this argument rests upon the ground, that the complainants'
franchise included the whole line of travel between the two places.
Under this view of their rights, the company proposed to the
legislature, before the new charter was granted to the respondents,
to do anything which should be deemed requisite for the public
accommodation. In support of the complainants' right, in this
respect, a case in referred to in 7 Barn. & Cres. 40; where it
is laid down, that the lord of an ancient market may, by law, have
a right to prevent other persons from selling goods in their
private houses, situated within the limits of his franchise; and
also to 5 Barn. & Cres. 363. These cases show, that the grant
to the lord of the market is exclusive; yet, if the place
designated for the market is made too small by the act of the
owner, any person may sell in the vicinity of the market, without
incurring any responsibility to the lord of the market.

															Suppose, the legislature had passed a law requiring the
complainants to enlarge their bridge, or construct a new one, would
they have been bound by it? Might they have not replied to the
legislature, we have constructed our bridge of the dimensions
required by the charter; we have, therefore, provided for the
public all the accommodation which we are bound to give? And if the
legislature could not require this of the complainants, is it not
clear, that they cannot assert an exclusive claim to the advantages
of an enlarged accommodation? In common with our citizens, they
submitted propositions to the legislature, but they could urge no
exclusive right to afford any accommodation beyond what was given
by their bridge. When the Charles River bridge was built, it was
considered a work of great magnitude. It was, perhaps, the first
experiment made to throw a bridge of such length over an arm of the
sea; and in the construction of it, great risk and expense were
incurred. The unrestricted profits contemplated, were necessary to
induce or justify the undertaking. Suppose, within two or three
years after the Charles River bridge had been erected, the
legislature had authorized another bridge to be built alongside of
it, which could only accommodate the same line of travel. Whether
the profits of such a bridge were realized by a company or by the
state, would not the act of the legislature have been deemed so
gross a violation of the rights of the complainants, as to be
condemned by the common sense and common justice of mankind? The
plea, that the timbers or stone of the new bridge did not interfere
with the old one, could not, in such a case, have availed. The
value of the bridge is not estimated by the quantity of timber and
stone it may contain, but by the travel over it. And if one-half or
two-thirds of this travel, all of which might conveniently have
passed over the old bridge, be drawn to the new one, the injury is
much greater than would have been the destruction of the old
bridge. A re-construction of the bridge, if destroyed, would secure
to the company the ordinary profits; but the division or
destruction of the profits, by the new bridge, runs to the end of
the charter of the old one. And shall it be said, that the greater
injury, the diversion of the profits, may be inflicted on the
company, with impunity; while for the less injury, the destruction
of the bridge, the law would give an adequate remedy?

															I am not here about to apply the principles which have been long
established in England, for the protection of ancient ferries,
markets, fairs, mills, &c. In my opinion, this doctrine, in its
full extent, is not adapted to the condition of our country. And it
is one of the most valuable traits in the common law, that it forms
a rule of right, only in cases and under circumstances adapted to
its principles. In this country, there are few rights founded on
prescription. The settlement of our country is comparatively
recent; and its rapid growth in population, and advance in
improvements, have prevented, in a great degree, interests from
being acquired by immemorial usage. Such evidence of right is found
in countries where society has become more fixed, and improvements
are in a great degree stationary. But without the aid of the
principles of the common law, we should be at a loss how to
construe the charter of the complainants, and ascertain their
rights.

															Although the complainants cannot fix their franchise, by showing
the extent of the ferry-rights; yet, under the principles of the
common law, which have been too long settled in Massachusetts, in
my opinion, to be now shaken, they may claim their franchise beyond
the timbers of their bridge. If they may go beyond these, it is
contended, that no exact limit can be prescribed. And because it
may be difficult, and perhaps, impracticable, to designate with
precision the exact limit, does it follow, that the complainants'
franchise is as narrow as their bridge? Is it more difficult to
define, with reasonable certainty, the extent of this right, than
it is, in many other cases, to determine the character of an
offence against the laws, from established facts? What shall
constitute a public or private nuisance? What measure of individual
wrong shall be sufficient to convict a person of the latter? And
what amount of inconvenience to the public shall constitute the
former? Would it be more difficult to define the complainants'
franchise, than to answer these questions? And yet public and
private nuisances are of daily cognisance in courts of justice.

															How have ferry-rights, depending upon the same principles, been
protected for centuries, in England? The principles of the common
law are not applied with that mathematical precision, of which the
principles of the civil law are susceptible. But if the
complainants' franchise cannot be measured by feet and inches, it
does not follow, that they have no rights.

															In determining upon facts which establish rights or wrongs,
public as well as private, an exercise of judgment is
indispensable; the facts and circumstances of each case are
considered, and a sound and legal conclusion is drawn from
them.

															The bridge of the complainants was substituted for the ferry;
and it was designed to accommodate the course of travel between
Boston and Charlestown. This was the view of the legislature, in
granting the charter, and of the complainants, in accepting it. And
if it be admitted, that the great increase of population has
required the erection of other bridges than that which is
complained of in this suit, over this arm of the sea, that can
afford no protection to the defendants. If the interests of the
complainants have been remotely injured by the construction of
other bridges, does that give a license to the defendants to
inflict on them a more direct and greater injury? By an extension
of the complainants' charter, thirty years, an indemnity was given
and accepted by them for the construction of the West Boston
bridge.

															The franchise of the complainants must extend a reasonable
distance above and below the timbers of their bridge. This distance
must not be so great as to subject the public to serious
inconvenience, nor so limited as to authorize a ruinous
competition. It may not be necessary to say, that for a remote
injury, the law would afford a remedy; but where the injury is
ruinous, no doubt can exist on the subject. The new bridge, while
tolls were charged, lessened the profits of the old one about
one-half, or two-thirds; and now that it is a free bridge by law,
the tolls received by the complainants are merely nominal. On what
principle of law, can such an act be sustained? Are rights acquired
under a solemn contract with the legislature, held by a more
uncertain tenure than other rights? Is the legislative power so
omnipotent in such cases, as to resume what it has granted, without
compensation? It will scarcely be contended, that if the
legislature may do this, indirectly, it may not do it directly. If
it may do it through the instrumentality of the Warren bridge
company, it may dispense with that instrumentality.

															But it is said, that any check to the exercise of this
discretion by the legislature, will operate against the advance of
improvements. Will not a different effect be produced? If every
bridge or turnpike company were liable to have their property
wrested from them, under an act of the legislature, without
compensation, could much value be attached to such property? Would
prudent men expend their funds in making such improvements? Can it
be considered as an injurious check to legislation, that private
property shall not be taken for public purposes, without
compensation? This restriction is imposed by the federal
constitution, and by the constitutions of the respective
states.

															But it has been urged, that the property of the complainants has
not been taken, as the tolls in anticipation cannot be denominated
property. The entire value of the bridge consists in the right of
exacting toll. Is not this right property, and cannot its value be
measured? Do not past receipts and increased intercourse, afford a
rule by which future receipts may be estimated? And if the whole of
these tolls are taken, under an act of the legislature, is not the
property of the complainants taken? The charter of the complainants
has been compared to a bank charter, which implies no obligation on
the legislature not to establish another bank in the same place.
This is often done; and it is contended, that for the consequential
injury done the old bank, by lessening its profits, no one supposes
that an action would lie, or that the second charter is
unconstitutional. This case bears little or no analogy to the one
under consideration. A bank may wind up its business, or refuse its
discounts, at the pleasure of its stockholders and directors. They
are under no obligation to carry on the operations of the
institution, or afford any amount of accommodation to the public.
Not so with the complainants. Under heavy penalties, they are
obliged to keep their bridge in repair, have it lighted, the gates
kept open, and to pay 200 l. annually to the college. This
the complainants are bound to do, although the tolls received
should scarcely pay for the oil consumed in the lamps of the
bridge.

															The sovereign power of the state has taken the tolls of the
complainants, but it has left them in possession of their bridge.
Its stones and timbers are untouched, and the roads that lead to it
remain unobstructed. One of the counsel in the defence, with
emphasis, declared, that the legislature can no more repeal a
charter, than it can lead a citizen to the block. The legislature
cannot bring a citizen to the block; may it open his arteries? It
cannot cut off his head; may it bleed him to death? Suppose, the
legislature had authorized the construction of an impassable wall,
which encircled the ends of the bridge, so as to prevent passengers
from crossing on it. The wall may be as distant from the abutments
of the bridge as the Warrenbridge. Would this be an infringement of
the plaintiffs' franchise? On the principles contended for, how
could it be so considered? If the plaintiffs' franchise is limited
to their bridge, then they are not injured by the construction of
this wall; or, at least, they are without remedy. This wall would
be no more injurious to the plaintiffs than the free bridge. And
the plaintiffs might be told, as alleged in this case, the wall
does not touch your bridge. You are left in the full exercise of
your corporate faculties. You have the same right to charge toll as
you ever had. The legislature had the same right to destroy the
plaintiffs' bridge by authorizing the construction of the wall, as
they had by authorizing the construction of a free bridge. In
deciding this question, we are not to consider what may be the law
on this subject in Pennsylvania, Maryland, Virginia or Ohio; but
what it is in Massachusetts. And in that state, the doctrine has
been sanctioned, that associations of men to accomplish enterprises
of importance to the public, and who have vested their funds on the
public faith, are entitled to protection. That their rights do not
become the sport of popular excitement, any more than the rights of
other citizens. The case under consideration forms, it is believed,
a solitary exception to this rule; whether we look to the action of
the legislature, or the opinions of the distinguished jurists of
the state, on the bench, and at the bar.

															The expense of keeping up the bridge, and paying the annuity to
the college, is all that is left by the state to the complainants.
Had this been proposed, or anything which might lead to such a
result, soon after the construction of the complainants' bridge, it
is not probable, that it would have been sanctioned; and yet it
might as well have been done then as now. A free bridge then, could
have been no more injurious to the plaintiffs than it is now. No
reflection is intended on the commonwealth of Massachusetts, which
is so renowned in our history, for its intelligence, virtue and
patriotism. She will not withhold justice, when the rights of the
complainants shall be established.

															Much reliance is placed on the argument, in the case reported in
4 Pet. 560, in which it was decided, that a law of the state of
Rhode Island, imposing a tax upon banks, is constitutional. As
these banks were chartered by the state, it was contended, that
there was no implied obligation on the legislature not to tax them.
That if this power could be exercised, it might be carried so far
as to destroy the banks. But this court sustained the right of the
state to tax. The analogy between the two cases is not perceived.
Does it follow, because the complainants' bridge is not exempt from
taxation, that it may be destroyed, or its value greatly impaired
by any other means? The power to tax extends to every description
of property held within the state, which is not specially exempted;
and there is no reason or justice in withholding from the operation
of this power, property held directly under the grant of the
state.

															The complainants' charter has been called a monopoly; but in no
just sense can it be so considered. A monopoly is that which has
been granted without consideration; as a monopoly of trade; or of
the manufacture of any particular article, to the exclusion of all
competition. It is withdrawing that which is a common right, from
the community, and vesting it in one or more individuals, to the
exclusion of all others. Such monopolies are justly odious, as they
operate not only injuriously to trade, but against the general
prosperity of society. But the accommodation afforded to the public
by the Charles River bridge, and the annuity paid to the college,
constitute a valuable consideration for the privilege granted by
the charter. The odious features of a monopoly do not, therefore,
attach to the charter of the plaintiffs.

															The 10th article of the declaration of rights in the
constitution of Massachusetts provides: 'Whenever the public
exigencies require that the property of any individual should be
appropriated to public uses, he shall receive a reasonable
compensation therefor.' And in the 12th article, it is declared,
that, 'no subject shall be deprived of his property, immunities,
privileges or estate, but by the judgment of his peers or the law
of the land.' Here is a power, recognised in the sovereignty, and
as incident to it, to apply private property to public uses, by
making for it a just compensation. This power overreaches every
other, and must be exercised at the discretion of the government;
and a bridge, a turnpike-road, a tract of land, or any other
property, may be taken, in whole or in part, for public purposes,
on condition of making compensation.

															In the case of Chadwick v. The Proprietors of the
Haverhill Bridge , reported in Dane's Abr. 683, it appears, that
a bridge was built under a charter, within forty yards of the
plaintiff's ferry, and over the same water. By an act of the
legislature, commissioners were authorized to ascertain the damages
sustained by the plaintiff; but he preferred his action at law,
which was prosecuted, and adequate damages were recovered. It is
true, this matter was referred to arbitrators; but they were men of
distinguished legal attainments and great experience; and they,
after determining that the plaintiff could sustain his action,
assessed the damages. This award was sanctioned by the court. Under
the circumstances of this case, at least as great a weight of
authority belongs to it, as if the decision had been made by a
court on the points involved. The case presented by the
complainants is much stronger than Chadwick's; and if he was
entitled to reparation for the injury done, no doubt can exist of
the complainants' right.

															In the extension of the national road through the state of Ohio,
a free bridge was thrown across a stream, by the side of a toll
bridge, which had some ten or fifteen years of its charter to run.
The new bridge did not in the least obstruct the passage over the
old one; and it was contended, that as no exclusive right was given
under the first grant, the owner of the toll bridge was entitled to
no compensation. It was said, on that occasion, as it has been
urged on this, that the right was given, subject to the discretion
of the legislature, as to a subsequent grant; and that the new
bridge could not be objected to by the first grantee, whether it
was built under the authority of the state or federal government.
This course of reasoning influenced a decision against the
claimant, in the first instance; but a reconsideration of his case,
and a more thorough investigation of it, induced the proper
authority to reverse the decision, and award an indemnity for the
injury done. The value of the charter was estimated, and a just
compensation was made. This, it is true, was not a judicial
decision, but it was a decision of the high functionaries of the
government, and is entitled to respect. It was dictated by that
sense of justice which should be felt on the bench, and by every
tribunal having the power to act upon private rights.

															It is contended by the respondents' counsel, that there was not
only no exclusive right granted in the complainants' charter,
beyond the timbers of the bridge; but the broad ground is assumed,
that the legislature had no power to make such a grant; that they
cannot grant any part of the eminent domain, which shall bind a
subsequent legislature. And a number of authorities were cited to
sustain their position: 1 Vatt. ch. 9, § 101; 4 Litt. 327; Domat,
book 1, tit. 6, § 1; 17 Vin. 88; Chit. on Prerog. 81; 10 Price 350;
Puff. ch. 5, § 7; 5 Cow. 558; 6 Wheat. 593; 20 Johns. 25;
Hargrave's Law Tracts 36; 4 Gill & Johns. 1. If this doctrine
be sustainable, as applied to this case, it is not perceived, why
an exception should be made in favor of the plaintiffs, within the
timbers of their bridge. It is admitted, that their grant is good
to this extent; and if the legislature may grant a part of the
eminent domain to this extent, why may it not go beyond it? If it
may grant any part of the eminent domain, must not the extent of
the grant be fixed at its discretion? In what other mode can it be
determined, than by a judicial construction of the grant?

															Acts of incorporation, when granted on a valuable consideration,
assume the nature of contracts; and vested rights under them are no
more subject to the legislative power than any other vested rights.
In granting the charter to the Charles River bridge company, the
legislature did not divest itself of the power to grant similar
charters. But the thing granted passed to the grantee, and can no
more be resumed by the legislature, than it can resume the right to
a tract of land which has been granted. When land is granted, the
state can exercise no acts of ownership over it, unless it be taken
for public use; and the same rule applies to a grant for a bridge,
a turnpike-road, or any other public improvement. It would assume a
bold position, to say, that a subsequent legislature may resume the
ownership of a tract of land, which had been granted at a preceding
session; and yet the principle is the same in regard to vested
rights, under an act of incorporation. By granting a franchise, the
state does not divest itself of any portion of its sovereignty; but
to advance the public interests, one or more individuals are vested
with a capacity to exercise the powers necessary to attain the
desired object. In the case under consideration, the necessary
powers to construct and keep up the Charles River bridge were given
to Thomas Russell and his associates. This did not withdraw the
bridge from the action of the state sovereignty, any more than it
is withdrawn from land which it has granted. In both cases, the
extent of the grant may become a question for judicial
investigation and decision; but the rights granted are protected by
the law.

															It is insisted, that as the complainants accepted the extension
of their charter in 1792, under an express assertion of right by
the legislature to make new grants at its discretion, they cannot
now object to the respondents' charter. In the acceptance of the
extended charter, the complainants are bound only by the provisions
of that charter. Any general declarations, which the legislature
may have made, as regards its power to grant charters, could have
no more bearing on the rights of the complainants, than on similar
rights throughout the state. There was no reservation of this power
in the prolonged charter, nor was there any general enactment on
the subject. Of course, the construction of the charter must depend
upon general and established principles.

															It has been decided by the supreme court of New York, that
unless the act making the appropriation of private property for
public use, contain a provision of indemnity, it is void. Where
property is taken under great emergencies, by an officer of the
government, he could hardly be considered, I should suppose, a
trespasser; though he does not pay for the property, at the time it
is taken. There can be no doubt, that a compensation should be
provided for, in the same act which authorizes the appropriation of
the property, or in a contemporaneous act. If, however, this be
omitted, and the property be taken, the law unquestionably gives a
remedy adequate to the damages sustained. No government which rests
upon the basis of fixed laws, whatever form it may have assumed, or
wherever the sovereignty may reside, has asserted the right, or
exercised the power, of appropriating private property to public
purposes, without making compensation.

															In the 4th section of the act to establish the Warren bridge,
there is a provision, that the corporation shall make compensation
for any real estate that may be taken for the use of the bridge.
The property of the complainants, which was appropriated under the
new charter, cannot strictly be denominated real estate; and
consequently, this special provision does not reach their case. In
this respect, the law must stand as though no such provision had
been made. But was the complainants' property appropriated, under
the charter granted to the respondents, for particular purposes? If
the new bridge were deemed necessary, by the legislature, to
promote the general convenience, and the defendants were
consequently authorized to construct it, and a part of the
plaintiffs' franchise were granted to the defendants; it was an
appropriation of private property for public use. It was as much an
appropriation of private property for public use, as would have
been an appropriation of the ground of an individual, for a
turnpike or a railroad, authorized by law.

															By the charter of the Warren bridge, as soon as the company
should be reimbursed the money expended in the construction of the
bridge, the expenses incurred in keeping it up, and five per cent.
interest, per annum, on the whole amount, the bridge was to become
the property of the state; and whether these sums should be
received or not, it was to become public property, in six years
from the time it was completed. The cost of construction, and the
expenses, together with the five per cent. interest, have been
reimbursed, and in addition, a large sum has been received by the
state from the tolls of this bridge. But it is now, and has been
since March last, it is admitted, a free bridge.

															In granting the charter of the Warren bridge, the legislature
seem to recognise the fact, that they were about to appropriate the
property of the complainants for public uses, as they provide, that
the new company shall pay annually to the college, in behalf of the
old one, 100 l . By this provision, it appears, that the
legislature has undertaken to do what a jury of the country only
could constitutionally do-assess the amount of compensation to
which the complainants are entitled. Here, then, is a law which not
only takes away the property of the complainants, but provides, to
some extent, for their indemnity. Whether the complainants have
availed themselves of this provision or not, does not appear, nor
is it very material. The law in this respect, does not bind them;
and they are entitled to an adequate compensation for the property
taken. These considerations belong to the case, as it arises under
the laws and constitution of Massachusetts.

															The important inquiry yet remains, whether this court can take
jurisdiction, in the form in which the case is presented. The
jurisdiction of this court is resisted, on two grounds. In the
first place, it is contended, that the Warren bridge has become the
property of the state, and that the defendants have no longer any
control over the subject; and also, that the supreme court of
Massachusetts have no jurisdiction over trusts.

															The chancery jurisdiction of the supreme court of Massachusetts,
is admitted to be limited; but they are specially authorized, in
cases of nuisances, to issue injunctions; and where this ground of
jurisdiction is sustained, all the incidents must follow it. If the
law incorporating the Warren bridge company was unconstitutional,
on the ground that it appropriated to public use the property of
the complainants, without making compensation, can there be any
doubt, that the supreme court of Massachusetts had jurisdiction of
the case? And having jurisdiction, is it not clear, that the whole
matter in controversy may be settled by a decree, that the
defendants shall account to the complainants for moneys received by
them after they had notice of the injunction.

															It is also insisted, that the state is the substantial party to
this suit, and, as the court has no jurisdiction against a
sovereign state, that they can sustain no jurisdiction against
those who act as agents under the authority of a state. That if
such a jurisdiction were asserted by this court, they would do
indirectly, what the law prohibits them from doing directly. In the
case of Osborn v. Bank of the United States , 9 Wheat.
733, this court says, 'the circuit courts of the United States have
jurisdiction of a bill in equity, filed by the Bank of the United
States for the purpose of protecting the bank in the exercise of
its franchises, which are threatened with invasion and destruction,
under an unconstitutional state law; and as the state itself cannot
be made a defendant, it may be maintained against the officers and
agents of the state who are appointed to execute such law.' As
regards the question of jurisdiction, this case, in principle, is
similar to the one under consideration. Osborn acted as the agent,
or officer, of the state of Ohio, in collecting from the bank,
under an act of the state, a tax or penalty unconstitutionally
imposed; and if, in such a case, jurisdiction could be sustained
against the agent of the state, why can it not be sustained against
a corporation, acting as agent, under an unconstitutional act of
Massachusetts, in collecting tolls which belong to the
plaintiffs?

															In the second place, it is contended, that this court cannot
take jurisdiction of this case, under that provision of the federal
constitution, which prohibits any state from impairing the
obligation of contracts, as the charter of the complainants has not
been impaired. It may be necessary to ascertain, definitely, the
meaning of this provision of the constitution; and the judicial
decisions which have been made under it. What was the evil against
which the constitution intended to provide, by declaring, that no
state shall pass any law impairing the obligation of contracts?
What is a contract, and what is the obligation of a contract? A
contract is defined to be an agreement between two or more persons
to do or not to do a particular thing. The obligation of a contract
is found in the terms of the agreement, sanctioned by moral and
legal principles. The evil which this inhibition on the states was
intended to prevent, is found in the history of our revolution. By
repeated acts of legislation, in the different states, during that
eventful period, the obligation of contracts was impaired. The time
and mode of payment were altered by law; and so far was this
interference of legislation carried, that confidence between man
and man was well nigh destroyed. Those proceedings grew out of the
paper system of that day; and the injuries which they inflicted
were deeply felt in the country, at the time the constitution was
adopted. The provision was designed to prevent the states from
following the precedent of legislation, so demoralizing in its
effects, and so destructive to the commercial prosperity of a
country.

															If it had not been otherwise laid down, in the case of Fletcher v. Peck , 6 Cranch 125, I should have
doubted, whether the inhibition did not apply exclusively to
executory contracts. This doubt would have arisen as well from the
consideration of the mischief against which this provision was
intended to guard, as from the language of the provision itself. An
executed contract is the evidence of a thing done; and it would
seem, does not necessarily impose any duty or obligation on either
party to do any act or thing. If a state convey land which it had
previously granted, the second grant is void; not, it would seem to
me, because the second grant impairs the obligation of the first,
for, in fact, it does not impair it; but because, having no
interest in the thing granted, the state could convey none. The
second grant would be void in this country, on the same ground that
it would be void in England, if made by the king. This is a
principle of the common law; and is as immutable as the basis of
justice. It derives no strength from the above provision of the
constitution; nor does it seem to me to come within the scope of
that provision. When we speak of the obligation of a contract, the
mind seems necessarily to refer to an executory contract; to a
contract, under which something remains to be done, and there is an
obligation on one or both of the parties to do it. No law of a
state shall impair this obligation, by altering it in any material
part. This prohibition does not apply to the remedy, but to the
terms used by the parties to the agreement, and which fix their
respective rights and obligations. The obligation, and the mode of
enforcing the obligation, are distinct things. The former consists
in the acts of the parties, and is ascertained by the binding words
of the contract. The other emanates from the law-making power,
which may be exercised at the discretion of the legislature, within
the prescribed limits of the constitution. A modification of the
remedy for a breach of the contract, does not, in the sense of the
constitution, impair its obligation. The thing to be done, and the
time of performance, remain on the face of the contract, in all
their binding force upon the parties; and these are shielded by the
constitution, from legislative interference.

															On the part of the complainants, it is contended, that on the
question of jurisdiction, as in reference to any other matter in
controversy, the court must look at the pleadings, and decide the
point raised, in the form presented. The bill charges, that the act
to establish the Warren bridge, purports to grant a right repugnant
to the vested rights of the complainants, and that it impairs the
obligation of the contract between them and the commonwealth; and,
being contrary to the constitution of the United States, is void.
In their answer, the respondents deny that the act creating the
corporation of the Warren bridge, impairs the obligation of any
contract set forth in the bill of the complainants. The court must
look at the case made in the bill, in determining any questions
which may arise; whether they relate to the merits or the
jurisdiction of the court. But in either case, they are not bound
by any technical allegations or responses, which may be found in
the bill and answer. They must ascertain the nature of the relief
sought, and the ground of jurisdiction, from the tenor of the
bill.

															In this case, the question of jurisdiction under the
constitution is broadly presented; and must be examined free from
technical embarrassment. Chief Justice PARKER, in the state court,
says, in reference to the charter of the complainants, 'the
contract of the government is, that this right shall not be
disturbed or impaired, unless public necessity demand; and if it
shall so demand, the grantees shall be indemnified.' Such a
contract, he observes, 'is founded upon the principles of our
constitution, as well as natural justice; and it cannot be
impaired, without a violation of the constitution of the United
States: and I think, also, it is against the principles of our
state constitution.' In the conclusion of his opinion, Mr. Justice
PUTNAM says, in speaking of the defendants' charter, 'it impairs
the obligation of the grants before made to the plaintiffs; it
takes away their property, for public uses, without compensation,
against their consent, and without a provision for a trial by jury;
it is therefore void.' Mr. Justice WILDE and Mr.

															Justice MORTON did not consider the new charter as having been
granted either in violation of the constitution of the state, or of
the United States. In their decree, the court say, 'that no
property belonging to the complainants was taken and appropriated
to public use, within the terms and meaning of the 10th article of
the declaration of rights prefixed to the constitution of this
commonwealth.' This decree can, in no point of view, be considered
as fixing the construction of the constitution of Massachusetts, as
it applies to this case. The decree was entered, pro forma ,
and is opposed to the opinion of two members of the court. But if
that court had deliberately and unanimously decided, that the
plaintiffs' property had not been appropriated to public use, under
the constitution of Massachusetts; still, where the same point
becomes important, on a question of jurisdiction, before this
court, they must decide for themselves. The jurisdiction of this
court could, in no respect, be considered as a consequence of the
decision of the above question by the state court, in whatever way
the decree might have been entered. But no embarrassment can arise
on this head, as the above decree was made, as a matter of form, to
bring the case before this court.

															To sustain the jurisdiction of this court, the counsel for
complainants place great reliance upon the fact, that the right,
charged to be violated, is held directly from the state; and they
insist, that there is an implied obligation on the state, that it
will do nothing to impair the grant. And that, in this respect, the
complainants' right rests upon very different grounds from other
rights in the community, not held by grant directly from the state.
On the face of the complainants' grant, there is no stipulation
that the legislature will do nothing that shall injure the rights
of the grantees; but it is said, that this is implied; and on what
ground, does the implication arise? Does it arise from the fact,
that the complainants are the immediate grantees of the state? The
principle is admitted, that the grantor can do nothing that shall
destroy his deed; and this rule applies as well to the state as to
an individual. And the same principle operates with equal force on
all grants, whether made by the state or individuals. Does an
implied obligation arise on a grant made by the state, that the
legislature shall do nothing to invalidate the grant, which does
not arise on every other grant or deed in the commonwealth?

															The legislature is bound by the constitution of the state, and
it cannot be admitted, that the immediate grantee of the state has
a stronger guarantee for the protection of his vested rights
against unconstitutional acts, than may be claimed by any other
citizen of the state. Every citizen of the state, for the
protection of his vested rights, claims the guarantee of the
constitution. This, indeed, imposes the strongest obligation on the
legislature not to violate those rights. Does the legislature give
to its grantee, by virtue of its grant, an additional pledge that
it will not violate the constitution of the state? Such an
implication, if it exist, can scarcely be considered as adding
anything to the force of the constitution. But this is not, it is
said, the protection which the complainants invoke. In addition to
their property having been taken without compensation, they allege,
that their charter has been impaired by the Warren bridge charter;
and on this ground, they ask the interposition of this court.

															The new charter does not purport to repeal the old one, nor to
alter it in any material or immaterial part. It does not, then,
operate upon the complainants' grant, but upon the thing granted.
It has, in effect, taken the tolls of the complainants and given
them to the public. In other words, under the new charter, all that
is valuable under the charter of the complainants has been
appropriated to public use. It is urged, that the legislature did
not intend to appropriate the property of the complainants; that
there is nothing in the act of the legislature, which shows an
intention by the exercise of the eminent domain, to take private
property for public use; but that, on the contrary, it appears the
Warren bridge charter was granted in the exercise of a legislative
discretion, asserted and sustained by a majority of the
legislature.

															In this charter, provision is made to indemnify the owners of
real estate, if it should be taken for the use of the bridge; and
the new company is required to pay, in behalf of the Charles River
bridge company, one-half of the annuity to the college. This would
seem to show an intention to appropriate private property, if
necessary, for the establishment of the Warren bridge; and also an
intention to indemnify the complainants, to some extent, for the
injury done them. There could have been no other motive than this,
in providing that the new company should pay the hundred pounds.
But the court can only judge of the intention of the legislature by
its language; and when, by its act, the franchise of the
complainants is taken, and, through the instrumentality of the
Warren Bridge company, appropriated to the public use, it is
difficult to say, that the legislature did not intent to do, what
in fact it has done. Throughout the argument, the counsel for the
complainants have most ably contended, that their property had been
taken and appropriated to the public use, without making
compensation; and that the act was, consequently, void, under the
constitution of Massachusetts.

															If this be the character of the act; if, under its provisions,
the property of the complainants has been appropriated to public
purposes; it may be important to inquire, whether it can be
considered as impairing the obligation of the contract, within the
meaning of the federal constitution. That a state may appropriate
private property to public use, is universally admitted. This power
is incident to sovereignty, and there are no restrictions on its
exercise, except such as may be imposed by the sovereignty itself.
It may tax, at its discretion, and adapt its policy to the wants of
its citizens; and use their means for the promotion of its objects
under its own laws. If an appropriation of private property to
public use impairs the obligation of a contract, within the meaning
of the constitution, then every exercise of this power by a state
is unconstitutional. From this conclusion, there is no escape; and
whether compensation be made or not, cannot vary the result. The
provision is not, that no state shall pass a law impairing the
obligation of contracts, unless compensation be made; but the power
is absolutely inhibited to a state. If the act of the state come
within the meaning of the provision, the act is void. No condition
which may be annexed to it, no compensation that can be made, can
give it validity. It is in conflict with the supreme law of the
land, and is, therefore, a nullity. Can a state postpone the day
fixed in an obligation for payment, or provide, that a bond for the
payment of money shall be discharged by the payment of anything
else than money? This no one will contend can be done, because such
an act would clearly impair the obligation of the contract; and no
compensation, which the state could give, would make the act
valid.

															The question is asked, whether the provision implied in the
constitution of Massachusetts, that private property may be taken,
by making compensation, is not impliedly incorporated in every
contract made under it; and whether the obligation of the contract
is not impaired, when property is taken by the state, without
compensation? Can the contract be impaired, within the meaning of
the federal constitution, when the action of the state is upon the
property? The contract is not touched, but the thing covered by the
contract is taken, under the power to appropriate private property
for public use. If taking the property impair the obligation of the
contract, within the meaning of the constitution, it cannot be
taken on any terms. The provision of the federal constitution,
which requires compensation to be made, when private property shall
be taken for public use, acts only upon the officers of the federal
government. This case must be governed by the constitution of
Massachusetts.

															Can a state, in any form, exercise a power over contracts, which
is expressly prohibited by the constitution of the Union? The
parties making a contract may embrace any conditions they please,
if the conditions do not contravene the law, or its established
policy. But it is not in the power of a state, to impose upon
contracts which have been made, or which may afterwards be made,
any condition which is prohibited by the federal constitution. No
state shall impair the obligation of contracts. Now, if the act of
a state, in appropriating private property to public use come
within the meaning of this provision, is not the act inhibited,
and, consequently, void? This point would seem to be too plain for
controversy. And is it not equally clear, that no provisions
contained in the constitution of a state, or in its legislative
acts, which subject the obligation of a contract to an
unconstitutional control of the state, can be obligatory upon the
citizens of the state? If the state has attempted to exercise a
power which the federal constitution prohibits, no matter under
what form the power may be assumed, or what specious pretexts may
be urged in favor of its exercise, the act is unconstitutional and
void.

															That a state may take private property for public use, is
controverted by no one. It is a principle which, from the
foundation of our government, has been sanctioned by the practice
of the states, respectively; and has never been considered as
coming in conflict with the federal constitution. This power of the
state is admitted in the argument; but it is contended, that the
obligation of the contract has been impaired, as the property of
the complainants has been taken, without compensation. Suppose, the
constitution of Massachusetts provided, that no land should be sold
for taxes, without valuation, nor unless it shall sell for
two-thirds of its value, due notice being given in some newspaper;
and suppose, a law of the legislature should direct land to be sold
for taxes, without a compliance with these requisites; would this
act impair the obligation of the grant by which the land is held,
within the meaning of the constitution? The act would be clearly
repugnant to the state constitution, and, consequently, all
proceedings under it would be void; but it would not be repugnant
to the constitution of the Union. And how does this case differ, in
principle, from the one under consideration? In both cases, the
power of the legislature is unquestionable; but, by the
constitution of the state, it must be exercised in a particular
manner; and if not so exercised, the act is void. Now, if, in
either case, the obligation of the contract under which the
property is held is impaired, then it must follow, that every act
of a state legislature which affects the right of private property,
and which is repugnant to the state constitution, is a violation of
the federal constitution.

															Can the construction of the federal constitution depend upon a
reference to a state constitution, and by which the act complained
of is ascertained to be legal or illegal? By this doctrine, the
act, if done in conformity to the state constitution, would be free
from objections under the federal constitution; but if this
conformity do not exist, then the act would not be free from such
objection. This, in effect, would incorporate the state
constitution in, and make it a part of the federal constitution. No
such rule of construction exists.

															Suppose, the legislature of Massachusetts had taken the farm of
the complainants for the use of a poor-house, or an asylum for
lunatics, without making adequate compensation; or if, in
ascertaining the damages, the law of the state had not been
strictly pursued; could this court interpose its jurisdiction,
through the supreme court of the state, and arrest the power of
appropriation? In any form in which the question could be made,
would it not arise under the constitution of the state, and be
limited between citizens of the same state to the local
jurisdiction? Does not the state constitution, which declares that
private property shall not be taken for public purposes, without
compensation, afford a safe guarantee to the citizens of the state
against the illegal exercise of this power; a power essential to
the wellbeing of every sovereign state, and which is always
exercised under its own rules?

															Had an adequate compensation been made to the complainants,
under the charter of the Warren bridge, would this question have
been raised? Can any one doubt, that it was in the power of the
legislature of Massachusetts to take the whole of the complainants'
bridge for public use, by making compensation? Is there any power
that can control the exercise of this discretion by the
legislature? I know of none, either in the state or out of it; but
it must be exercised in subordination to the provisions of the
constitution of the state. And if it be not so exercised, the
judicial authority of the state only, between its own citizens, can
interpose and prevent the wrong, or repair it in damages.

															In all cases where private property is taken by a state for
public use, the action is on the property; and the power, if it
exist in the state, must be above the contract. It does not act on
the contract, but takes from under it vested rights. And this
power, when exercised by a state, does not, in the sense of the
federal constitution, impair the obligation of the contract. Vested
rights are disturbed, and compensation must be made; but this is a
subject which belongs to the local jurisdiction. Does this view
conflict with the established doctrine of this court? A reference
to the points adjudged will show that it does not.

															The case of Satterlee v. Mathewson , 2 Pet. 380,
presented the following facts. Satterlee was the tenant of
Mathewson, who claimed, at the time of the lease, under a
Connecticut title, in Luzerne county, Pennsylvania. Afterwards,
Satterlee purchased a Pennsylvania title for the same land. An
ejectment was brought by Mathewson for the land, and the court of
common pleas decided, that as Satterlee was the tenant of the
plaintiff, he could not set up a title against his landlord. On a
writ of error, this judgment was reversed by the supreme court, on
the ground, that the relation of landlord and tenant could not
exist under a Connecticut title. Shortly afterwards, the
legislature of Pennsylvania passed a law, that, under such a title,
the relation of the landlord and tenant should exist, and the
supreme court of the state having decided that this act was valid,
the question was brought before this court by writ of error. In
their opinion, the court say: 'We come now to the main question in
the cause. Is the act which is objected to, repugnant to any
provision of the constitution of the United States? It is alleged,
to be particularly so, because it impairs the obligation of the
contract between the state of Pennsylvania and the plaintiff, who
claims under her grant, &c.' The grant vested a fee-simple in
the grantee, with all the rights, privileges, &c. 'Were any of
these rights disturbed or impaired by the act under consideration?
It does not appear from the record, that they were in any instance
denied, or ever drawn in question.' The objection most pressed upon
the court was, that the effect of this act was to divest rights
which were vested by law in Satterlee. 'There is certainly no part
of the constitution of the United States,' the court say, 'which
applies to a state law of this description; nor are we aware of any
decision of this, or any circuit court, which has condemned such a
law, upon this ground, provided its effect be not to impair the
obligation of the contract.' And the court add, that in the case of Fletcher v. Peck , it is nowhere intimated, that a
state statute, which divests a vested right, is repugnant to the
constitution of the United States. There is a strong analogy
between this case and the one under consideration. The effect of
the act of Pennsylvania was, to defeat the title of Satterless,
founded upon the grant of the state. It made a title valid which,
in that very case, had been declared void by the court, and which
gave the right to Mathewson, in that suit, against the prior grant
of the state. And this court admit, that a vested right was
divested by the act; but they say, it is not repugnant to the
federal constitution. The act did not purport to effect the grant,
which was left, with its covenants, untouched; but it created a
paramount right, which took the land against the grant.

															In the case under consideration, the Warren bridge charter does
nor purport to repeal, or in any way affect, the complainants'
charter. But, like the Pennsylvania act in its effects, it divested
the vested rights of the complainants. Satterlee was not the
immediate grantee of the state; but that could not affect the
principle involved in the case. He claimed under the grant of the
state, and the fact that there was an intermediate grantee between
him and the state, could not weaken his right. In the case of Fletcher v. Peck , 6 Cranch 87, the legislature of
Georgia attempted to annul its own grant. The law under which the
first grant was issued, was attempted to be repealed; and all
grants under it were declared to be null and void, by the second
act. Here, the state acted directly upon the contract; and the case
comes within the rule, that to impair the obligation of the
contract, the state law must act upon the contract. The act of the
legislature complained of, in the case of Sturges v. Crowninshield , 4 Wheat. 122, had a direct bearing upon the
contract. The question was, whether under the bankrupt law of of
New York, a debtor was discharged from his obligation by a
surrender of his property. And so, in the case of Trustees of
Dartmouth College v. Woodward , Ibid. 518, the question
was, whether the legislature could, without the consent of the
corporation, alter its charter in a material part, it being a
private corporation. In the case of Terrett v. Taylor , 9 Cranch 52, the uncontroverted doctrine is
asserted, that a legislature cannot repeal a statute creating a
private corporation, and thereby destroy vested rights. The case of Green v. Biddle , 8 Wheat. 1, has also been cited to
sustain the jurisdiction of the court in this case. The court
decided, in that case, that the compact, which guarantied to
claimants of land lying in Kentucky, under titles derived from
Virginia, their rights, as they existed under the laws of Virginia,
prohibited the state of Kentucky from changing those rights. In
other words, that Kentucky could not alter the compact. And when
this court were called on to give effect to the act of Kentucky,
which they considered repugnant to the compact, they held the
provisions of the compact paramount to the act.

															After a careful examination of the questions adjudged by this
court, they seem not to have decided in any case, that the contract
is impaired, within the meaning of the federal constitution, where
the action of the state has not been on the contract. That though
vested rights have been divested, under an act of a state
legislature, they do not consider that as impairing the grant of
the state, under which the property is held. And this, it appears,
is the true distinction; and the one, which has been kept in view
in the whole current of adjudications by this court, under the
above clause of the constitution.

															Had this court established the doctrine, that where an act of a
state legislature affected vested rights, held by a grant from the
state, the act is repugnant to the constitution of the United
States, the same principle must have applied to all vested rights.
For, as has been shown, the constitution of a state gives the same
guarantee of their vested rights to all its citizens, as to those
who claim directly under grant from the state. And who can define
the limit of a jurisdiction founded on this principle? It would
necessarily extend over the legislative action of the state; and
control, to a fearful extent, the exercise of their powers. The
spirit of internal improvement pervades the whole country. There
is, perhaps, no state in the Union, where important pnblic works,
such as turnpike roads, canals, railroads, bridges, &c., are
not either contemplated, or in a state of rapid progression. These
cannot be carried on, without the frequent exercise of the power to
appropriate private property for public use. Vested rights are
daily divested by this exercise of the eminent domain. And if, in
all these cases, this court can act as a court of supervision for
the correction of errors, its power may be invoked in numberless
instances. If to take private property impairs the obligation of
the contract under which it is held, this court may be called to
determine, in almost every case where the power is exercised, as
well where compensation is made, as where it is not made. For, if
this court can take jurisdiction on this ground, every individual
whose property has been taken, has a constitutional right to the
judgment of this court, whether compensation has been made in the
mode required by the constitution of the state. In ascertaining the
damages, the claimant has a right to demand a jury, and that the
damages shall be assessed in strict conformity to the principles of
the law. To revise these cases, would carve out for this court a
new jurisdiction, not contemplated by the constitution, and which
cannot be safely exercised.

															These are considerations which grow out of our admirable system
of government, that should lead the judicial tribunals both of the
federal and state governments to mutual forbearance, in the
exercise of doubtful powers. The boundaries of their respective
jurisdictions can never, perhaps, be so clearly defined, on certain
questions, as to free them from doubt. This remark is peculiarly
applicable to the federal tribunals, whose powers are delegated,
and consequently, limited. The strength of our political system
consists in its harmony; and this can only be preserved, by a
strict observance of the respective powers of the state and federal
government. Believing that this court has no jurisdiction in this
case; although I am clear that the merits are on the side of the
complainants; I am in favor of dismissing the bill, for want of
jurisdiction.

															BALDWIN, Justice.

															In this case, I entirely concur in the judgment of the court, as
well as the reasongs given in the opinion delivered by the chief
justice: my only reason for giving a separate opinion is, to notice
some matters not referred to in that opinion, which I am not
willing should pass without expressing mine upon them. The course
of the argument, and the nature of several questions involved in
the case, gives them an importance deserving attention, from these
and other considerations, which I cannot overlook.

															The first question which arises in this cause, is an objection
to the jurisdiction of the court below, made by the appellees, on
the ground of the want of proper parties; and that the state of
Massachusetts, being now the owners of the bridge, pursuant to the
terms of the charter to the defendants, no suit could be sustained
which can affect their interest in it. On an inspection of the
record, the case is one which does not admit of this objection, if
it was well founded otherwise. The bill was filed in June, and the
pleadings closed in December 1828, so that we have no judicial
knowledge of any matters which have arisen since; confining itself,
as the court must do, to the pleadings of the cause, and the decree
of the court below, we can notice nothing not averred in the bill
or answer, nor act on any evidence which does not relate to
them.

															An injunction is prayed for by the plaintiffs, to restrain the
defendants from erecting a bridge over Charles river, pursuant to
their charter in the act of 1828, which they allege to be a
violation of their rights, by impairing the obligation of previous
contracts made by the state with the plaintiffs. When the pleadings
closed, the defendants had not completed the bridge complained of;
they were then the only persons who had any present interest in it;
they were constructing it for their own benefit, and were to have
the sole and exclusive use of it, till by the terms of the charter,
it became the property of the state; they were, therefore, the
proper, and the only parties against whom a bill for an injunction
could then be sustained. If, then, the plaintiffs were, in June
1828, entitled to a decree restraining the erection of the bridge,
their right cannot be affected by any matter pendente lite ,
nor by any reversionary right, which may have accrued to the state.
The case must be decided, as it ought to have been decided in
December 1828, and the only question before the court below, on the
pleadings and exhibits, was on the right of the plaintiffs to the
only remedy prayed, which was an injunction; that court had
jurisdiction between the parties to the suit, to decide the
question of right between them, but could go no further than to
grant the injunction against the erection of the bridge, because
the bill avers no matter arising subsequent to December 1828.
Whether, on an amended, a supplemental, or an original bill, a
decree can be rendered for an account of tolls received, and for
the suppression of the bridge, is a question which can arise only
after a reversal of the decree now appealed from, and such a state
of pleading as will bring subsequent matters before the court
below.

															It has also been objected, that the plaintiffs have a perfect
remedy at law, if their case is such as is set forth in the bill,
and therefore, cannot sustain a suit in equity. If this case came
up by appeal from a circuit court, the question might deserve
serious consideration; but as the courts in Massachusetts derive
their equity jurisdiction from a state law, it becomes a very
different question. The supreme court of that state is the rightful
expositor of its laws (2 Pet. 524-5); and having sustained and
exercised their jurisdiction over this case, as one appropriate to
their statutory jurisdiction in equity, it will be considered as
their construction of a state law, to which this court always pays
great, and generally, conclusive, respect. Our jurisdiction over
causes from state courts, by the 25th section of the judiciary act
is peculiar; no error can be assigned by a plaintiff in error,
except those which that act has specified, and the court can
reverse for no other. It may be a very different question, whether
the defendant in error may not claim an affirmance, on any ground
which would entitle him to a decree below, which it is unnecessary
to consider, as these objections to the jurisdiction cannot be
sustained.

															The next question is one vital to the plaintiffs' case, if
decided against them, which is, whether a charter to a corporation
is a contract, within the tenth section of the first article of the
constitution, which prohibits a state from passing any law
impairing the obligation of a contract; or whether this prohibition
applies only to contracts between individuals, or a state and
individuals. As this question is not only an all-important one,
arising directly and necessarily in the case, but in one view of
it, is the whole case which gives the plaintiffs a standing in this
court, it will be next considered.

															In this country, every person has a natural and inherent right
of taking and enjoying property, which right is recognised and
secured in the constitution of every state; bodies, societies and
communities have the same right, but inasmuch as on the death of
any person without a will, his property passes to his personal
representative or heir, a mere association of individuals must hold
their real and personal property subject to the rules of the common
law. A charter is not necessary to give to a body of men the
capacity to take and enjoy, unless there is some statute to prevent
it, by imposing a restriction or prescribing a forfeiture, where
there is a capacity to take and hold; the only thing wanting is the
franchise of succession, so that the property of the society may
pass to successors instead of heirs. Termes de la Ley 123; 1 Bl.
Com. 368-72. This and other franchises are the ligaments which
unite a body of men into one, and knit them together as a natural
person (4 Co. 65 a ); creating a corporation, an invisible
incorporeal being, a metaphysical person (2 Pet. 223); existing
only in contemplation of law, but having the properties of
individuality (4 Wheat. 636), by which a perpetual succession of
many persons are considered the same, and may act as a single
individual. It is the object and effect of the incorporation, to
give to the artificial person the same capacity and rights as a
natural person can have, and when incorporated either by an express
charter or one is presumed from prescription, they can take and
enjoy property to the extent of their franchises as fully as an
individual. Co. Litt. 132 b; 2 Day's Com. Dig. 300; 1 Saund.
345. It bestows the character and properties of individuality on a
collective and changing body of men (4 Pet. 562), by which their
rights become as sacred as if they were held in severalty by
natural person. Franchises are not peculiar to corporations, they
are granted to individuals, and may be held by any persons capable
of holding or enjoying property; a franchise is property, a right
to the privilege or immunity conferred by the grant; it may be of a
corporeal or incorporeal right, but it is a right of property, or
propriety, in the thing to which it attaches. Franchises are of
various grades, from that of a mere right of succession to an
estate in land, to the grant of a County Palatine, which is the
highest franchise known to the law; the nature and character
whereof is the same, whether the grant is to one or many.
Corporations are also of all grades, and made for varied objects;
all governments are corporations, created by usage and common
consent, or grants and charters which create a body politic for
prescribed purposes; but whether they are private, local or
general, in their objects, for the enjoyment of property, or the
exercise of power, they are all governed by the same rules of law,
as to the construction and the obligation of the instrument by
which the incorporation is made. One universal rule of law protects
persons and property. It is a fundamental principle of the common
law of England, that the term freemen of the kingdom, includes 'all
persons,' ecclesiastical and temporal, incorporate, politique or
natural; it is a part of their magna charta (2 Inst. 4), and
is incorporated into our institutions. The persons of the members
of corporations are on the same footing of protection as other
persons, and their corporate property secured by the same laws
which protect that of individuals. 2 Inst. 46-7. 'No man shall be
taken,' 'no man shall be disseised,' without due process of law, is
a principle taken from magna charta , infused into all our
state constitutions, and is made inviolable by the federal
government, by the amendments to the constitution.

															No new principle was adopted, in prohibiting the passage of a
law by a state, which should impair the obligation of a contract;
it was merely affirming a fundamental principle of law, and by
putting contracts under the protection of the constitution,
securing the rights and property of the citizens from invasion by
any power whatever. It was a part of that system of civil liberty
which 'formed the basis whereon our republics, their laws and
constitutions, are erected, and declared, by the ordinance of 1787,
to be a fundamental law of all new states.' This was the language
of the congress, 'And in the just preservation of rights and
property, it is understood and declared, that no law ought ever to
be made, or have force in the said territory, that shall in any
manner interfere with, or affect, private contracts, or any
agreements, bona fide and without fraud, previously formed.'
(1 U.S. Stat. 52.) This ordinance was passed during the session of
the convention which framed the constitution, several of the
members of which were also members of congress; it was, therefore,
evidently in their view, and may justly be taken as a declaration
of the reasons for inserting this prohibitory clause. As an
important contemporaneous historical fact, it also shows, that the
convention intended to make the prohibition more definite, less
extensive in one respect, and more so in another, than in the
ordinance. Omitting the words 'in any manner interfere with or
affect,' the words 'impair the obligation of,' were substituted;
the word private was omitted, so as to extend the prohibition to
all 'contracts,' public or private: as 'the constitution
unavoidably deals in general terms' (1 Wheat. 326), marks only
great outlines, and designates its general objects (4 Ibid. 407),
no detail was made, no definition of a contract given, or exception
made.

															No one can doubt, that the terms of the prohibition are not only
broad enough to comprehend all contracts, but that violence will be
done to the plain meaning of the language, by making any exception,
by construction; it must, therefore, necessarily embrace those
contracts, which grant a franchise or property to individuals or
corporations, imposing the same restraints on states, as were
imposed by the English constitution on the prerogative of the king,
which devolved on the states by the revolution. See 4 Wheat. 651; 8
Ibid. 584-8. The king has the 'prerogative of appointing ports and
havens;' the 'franchise of lading and discharging has been
frequently granted by the crown,' from an early period. 'But though
the king had a power of granting the franchise of ports and havens,
yet he had not the power of resumption, or of narrowing or
contracting their limits, when once established.' 1 Bl. Com. 264.
It would be strange, if the free citizens of a republic did not
hold their rights by a tenure as sacred as the subjects of a
monarchy; or that it should be deemed compatible with American
institutions, to exclude from the protection of the constitution,
those privileges and immunities which are held sacred by the laws
of our ancestors. We have adopted them, as our right of
inheritance, with the exception of such as are not suited to our
condition, or have been altered by usage or acts of assembly. No
one, I think, will venture the assertion, that it is incompatible
with our situation, to protect the corporate rights of our
citizens, or that, in any state, there is either a usage or law
which makes them less sacred then those held by persons who are not
members of of a corporation. No one can, in looking throughout the
land, fail to see, that an incalculable amount of money has been
expended, and property purchased, on the faith of charters and
grants, or contemplate their violation by a law, which will not,
some day, take his possessions from him, by an exercise of power,
founded on a principle which applies to all rights. If a state can
revoke its grant of property or power to a subordinate corporation,
there can be no limitation; there is no principle of law, or
provision of the constitution, that can save the charter of a
borough, a city, a church or a college, that will not equally save
any other; of consequence, if all cannot be protected, none can
be.

															The federal government itself is but a corporation, created by
the grant or charter of the separate states; if that is inviolable
by the power of a state, each of its provisions is so; each state,
in its most sovereign capacity, by the people thereof, in a
convention, have made it a supreme law of the state, paramount to
any state constitution then in existence, or which may be
thereafter adopted. The state has made an irrevocable restriction
on its own once plenary sovereignty, which it cannot loosen,
without the concurrence of such a number of states, as are
competent to amend the constitution. So far as such restriction
extends, the state has annulled its own power, by a surrender
thereof for the public good; if a state can remove that restriction
on its own legislative power, and do the thing prohibited, it can
also remove the restriction on its sovereignty, by revoking the
powers granted to congress. The property and power of the federal
government, are held by no other or stronger tenure, than the land
or franchises of a citizen or corporation; both rights were
inherent in the people of a state, who have made grants, by their
representatives, in a convention, directly by their original power,
or in a legislative act, made by the authority delegated in their
state constitution. But the grants thus made are as binding on the
people and the state, as if made in a convention; they are the
contracts of the state, the obligation of which the people have
declared, shall not be impaired by the authority of a state; it
shall not 'pass any law,' which shall have such object in view, or
produce such effect. An act of a convention is the supreme law of
the state; an act of the legislature is a law subordinate; both,
however, are laws of the state, of binding authority, unless
repugnant to that law which the state has, by its own voluntary
act, in the plenitude of its sovereignty, made paramount to both,
and declared that its judges, 'shall be bound thereby,' anything to
the contrary notwithstanding. Each state has made the obligation of
contracts a part of the constitution, thus saving and confirming
them, under the sanction of its own authority; no act, therefore,
can violate the sanctity of contracts, which cannot annul the whole
constitution; for it is a fundamental principle of law, that
whatever is saved and preserved by a statute, has the same
obligation as the act itself. This principle has been taken from
the magna charta of England, and carried into the great
charter of our rights of property.

															By magna charta , c. 9, and 7 Ric. II., it is enacted,
'that the citizens of London shall enjoy all their liberties,
notwithstanding any statute to the contrary.' By this act, the city
may claim liberties by prescription, charter or parliament,
notwithstanding any statute made before. 4 Inst. 250, 253; 2 Ibid.
20-1; 5 Day's Com. Dig. 20, London, M.; Harg. Law Tr. 66-7. The
constitution goes further, by saving, preserving and confirming the
obligation of contracts; and notwithstanding any law passed after
its adoption; and this confirmation, being by the supreme law of
the land, makes a contract as inviolable, even by a supreme law of
a state, as the constitution itself. From the beginning of the
revolution, the people of the colonies clung to magna
charta , and their charters from the crown; their violation was
a continued subject of complaint. See 1 Journ. Cong. 27-8, 40-1,
60, 108, 143, 154, 167, 178; one of the grievances set forth in the
declaration of independence is, 'for taking away our charters,'
&c.

															One of the causes which led to the Engligh revolution was, 'They
have also invaded the privileges, and seized on the charters of
most of those towns that have a right to be represented by their
burgesses in parliament; and have secured surrenders to be made of
them, by which the magistrates in them have delivered up all their
rights and privileges, to be disposed of at the pleasure of those
evil counsellors,' &c. 10 Journ. Commons, 2 b. In the
language of congress, 'the legislative, executive and judging
powers, are all moved by the nod of a minister; privileges and
immunities last no longer than his smiles; when he forwns, their
feeble forms dissolve.' 1 Journ. 59-60. 'Without incurring or being
charged with a forfeiture of their rights, without being heard,
without being tried, without law, without justice, by an act of
parliament, their charter is destroyed, their liberties violated,
their constitution and from of government changed; and all this,
upon no better pretence, than because in one of their towns, a
trespass was committed on some merchandise, said to belong to one
of the companies, and because the ministry were of opinion, that
such high political regulations, were necessary to compel due
subordination, and obedience to their mandates.' 1 Journ. 41.

															Such were the principles of our ancestors, in both revolutions;
they are consecrated in the constitution framed by the fathers of
our government, in terms intended to protect the rights and
property of the people, by prohibiting to every state the passage
of any law which would be obnoxious to such imputations on the
character of American legislation. The reason for this provision
was, that the transcendent power of parliament devolved on the
several states by the revolution (4 Wheat. 651), so that there was
no power by which a state could be prevented from revoking all
public grants of property or franchise, as parliament could do.
Harg. L. Tr. 60-61; 4 Wheat. 643, 651. The people of the states
renounced this power; and as an assurance that that they would not
exercise it; or if they should do so inadvertently, that any law to
that effect should be void; the constitution embraces all grants,
charters and other contracts affecting property, places them beyond
all legislative control, and imposes on this court the duty of
protecting them from legislative violation. 6 Cranch 136; 4 Wheat.
625. In the same sovereign capacity in which the people of each
state adopted the constitution, they pledged their faith that the
sanctity of the obligation of contracts should be inviolable; and
to insure its performance, created a competent judicial power, whom
they made the final arbiter between their laws and the
constitution, in all cases in which there was an alleged collision
between them. These principles have been too often, and too
solemnly, affirmed by this court, to make any detail of their
reasoning or opinions necessary.

															In Fletcher v. Peck , they were applied to a grant
of land by a state to individuals, made by the authority of a state
law, which was afterwards repealed (6 Cranch 127); in New
Jersey v. Wilson , to an immunity from taxation granted
to a tribe of Indians (7 Ibid. 164); in Terrett v. Taylor , to a religious society (9 Ibid. 43, &c.); in Dartmouth College v. Woodward , to a literary
corporation. 4 Wheat. 636. In all these cases, state laws which
violated the grants and charters which conferred private or
corporate rights, were held void, under the prohibition in the
constitution; the court holding, that as it contained no exception
in terms, none could be made by construction; the language being
clear of all ambiguity, it extended to corporations as well as
individuals. 8 Wheat. 480-90, passim .

															But while the court repudiates all constructive exceptions to
the prohibition, it equally repudiates its application to
constructive contracts; it will preserve the immunity from
taxation, when it is granted in terms, as in 7 Cranch 164; yet they
will not raise an immunity by implication, 'where there is no
express contract.' 4 Pet. 563.

															There can be no difficulty in understanding this clause of the
constitution; its language is plain, and the terms well defined, by
the rules of law; the difficulty arises by the attempts made to
interpolate exceptions on one hand, so as to withdraw contracts
from its operation; and on the other hand, to imply one contract
from another, to make each implied contract the parent of another,
and them endeavor to infuse them all into the constitution, as the
contract contained in the grant or charter in question. If human
ingenuity can be thus exerted, for either purpose, with success, no
one can understand the constitution as it is; we must wait till it
has been made, by such construction, what such expounders may think
it ought to have been, before we can assign to its provisions any
determinate meaning. In the rejection of both constructions, and
following the decisions of this court, my judgment is conclusively
formed-that the grants of property, of franchise, privilege or
immunity, to a natural or artificial person, are alike confirmed by
the constitution; and that the plaintiffs are entitled to the
relief prayed for in their bill, if they have otherwise made out a
proper case.

															In tracing their right to its origin, they found it on a grant
to Harvard College, by the general court, or colonial council, in
1640, of the ferry between Boston and Charlestown, which had
belonged to the colony from its first settlement. In 1637, the
governor and treasurer were authorized to lease this ferry for
three years, at 40 l. a year, under which authority, they
made such a lease, and gave an exclusive right of ferry between the
two towns, though they were not authorized to do more than lease
the ferry. The lease expired in 1640, when the ferry reverted to
the colony, and was granted to the college, by no other description
than 'the ferry between Boston and Charlestown,' which the
plaintiffs contend, was a grant in perpetuity of the exclusive
right of ferriage between the two towns, and from any points on
Charles river, at the one or the other.

															All the judges in the court below, as well as the counsel on
both sides, agree, that the common law as to ferries was adopted
and prevails in Massachusetts; this part of the case then must
depend on what were the rules and principles of that law, in their
application to such a grant at the time it was made. It is an
admitted principle, that the king, by his prerogative, was vested
with the right of soil and jurisdiction over the territory within
which he constituted, by his charter, the colonial government;
their grants had the same validity as his, and must be construed by
the same rules which regulate prerogative grants. See 1 Pick. 182,
&c. As the king, by his charter, put the colonial government in
his place, they held the right in and over the arms of the sea,
navigable rivers, and the land in the colony, for the benefit of
the people of the colony, as a public trust, not as a private
estate; the people of the colony had the right of fishing,
navigating and passing freely in and over the public waters,
subject to such grants of franchise or property as might have been
made, or which should be made in future. But as any grant of a
private right in or over public property, is necessarily an
abridgment of the public right, to the extent of such grants, the
law looks on them with great watchfulness, and has prescribed rules
for their construction, founded on a proper regard to the general
interest.

															The prerogative of the king is vested in him as necessary for
the purposes of society; it extends to all things not injurious to
his subjects, but 'stretcheth not to the doing of any wrong' (1 Bl.
Com. 237-9); the objects for which it is held and exercised, are
for the good of the subject, and the benefit of the commonwealth,
and not his private emolument. It is a part of the common law (2
Inst. 63, 496); confined to what the law allows, and is for the
public good (Hob. 261); and the increase of the public treasure.
Hard. 27; 2 Vent. 268. The king is the universal occupant of the
public domain, which he may grant at pleasure (11 Co. 86 b; 9 Pet. 748; Cowp. 210); but his grants are voidable, if they are
against the good of the people, their usual and settled liberties,
or tend to their grievance (2 Bac. Abr. 149; Show. P. C. 75);
holding it for the common benefit as a trust, his prerogative is
the guardianship of public property, for the general interest of
his subjects.

															This is the reason why the king has a prerogative, in the
construction of his grants, by which they are taken most strongly
in his favor and against the grantee, because they take from the
public whatever is given to an individual; whereas, the grants of
private persons are taken by a contrary rule, because the public
right is not affected by them. From a very early period, it was the
policy of the law of England, to protect the public domain from the
improvident or illegal exercise of the royal prerogative in making
grants, and to secure to pious and charitable institutions, the
benefit of donations made directly to them, or for their use, by
rules of construction appropriate to each kind of grants, which
were a part of the common law. These rules were affirmed by
statutes, in order to give them a more imposing obligation; these
statutes were passed in 1323-24. By the 17 Edw. II., stat. 1 c. 15,
it is enacted, that 'When our lord the king giveth or granteth land
or a manor, with the appurtenances, without he make express mention
in his deed or writing, of knights' fees, advowsons of churches,
and dowers when they fall, belonging to such manor or land, then,
at this day, the king reserveth to himself such fees, advowsons and
dower; albeit, that among other persons, it hath been observed
otherwise;' 1 Ruff. 182-3. By the 17 Edw. II., called the statute
of templars, it was declared, that the and donations for charitable
purposes, should be held, 'so always that the godly and worthy will
of the foresaid givers be observed, performed and always
religiously executed as aforesaid.' Keble's Stat. 86-7. Subsequent
statutes have prescribed the same rule, whereby it has ever since
been a fundamental principle of the law of charities, that the will
of the donor should be the standard of construction in relation to
all such gifts or grants (8 Co. 131 b; 10 Ibid. 34 b; 3 Ibid. 3 b; 7 Ibid. 13 a ); putting them on the
footing of a will, in which the intention of the testator prevails
over the legal interpretation of the words.

															Both classes of cases are exceptions to the general rules of
construing private grants. They rest, however, on the strongest
grounds of reason, justice and sound policy, applicable alike to
England and this country. In cases of charities, the rule has been
most liberally applied by this court, as it has in England, in the
construction of statutes and grants, in favor of donations to them
(4 Wheat. 31, &c.; 9 Cranch 43, 331; 3 Pet. 140, 480; 9 Wheat.
455, 64; 2 Pet, 580, 585); so of dedications of property to public
use, or the use of a town (12 Wheat. 582; 6 Pet. 436-7; 10 Ibid.
712-13); the rules of which are essentially different from those
which relate to grants from one person to another, or laws for
private benefit. In cases of grants by the king, in virtue of his
prerogative, then the rule prescribed by the statute of prerogative
has ever been a fundamental one in England, 'that nothing of
prerogative can pass, without express and determinate words.' Hob.
243; Hard. 309-10; Plowd. 336-7. In 1830, it was laid down in the
house of lords, as clear and settled law, that the king's grants
shall be taken most strongly against the grantee, though the rule
was otherwise as to private grants (5 Bligh P. C. 315-16); this
rule was never questioned in England, and has been adopted in all
the states, as a part of their common law.

															This rule is a part of the prerogative of the crown, which
devolved on the several states by the revolution (4 Wheat. 651);
and which the states exercise to the same extent as the king did,
as the guardians of the public, for the benefit of the people at
large. It is difficult to assign a good reason, why public rights
should not receive the same protection in a republic as in a
monarchy, or why a grant by a colony or state, should be so
construed as to impair the right of the people to their common
property, to a greater extent in Massachusetts, than a grant by the
king would in England. But the grant of this ferry, in 1640, was
only a prerogative grant, by colonial authority, which derived
solely from the charter of the king, and not by act of parliament,
could rise no higher than its source in his prerogative, nor could
it pass, by delegated authority, what would not pass in the same
words, by original grant from the king; consequently, the grant
must be construed as if he had made it. If, however, there could be
a doubt on this subject, by the general principles of the common
law, as adopted in that colony, there were reasons peculiar to it,
which would call for the most rigid rules of construing grants of
any franchise, or right of any description, on the waters or shores
of the rivers and arms of the sea, within its boundaries.

															In 1641, the general court adopted an ordinance, which was a
declaration of common liberties, providing that riparian owners of
land on the sea or salt water, should hold the land to low-water
mark, if the tide did not ebb and flow more than one hundred rods;
though this ordinance expired with the charter of the colony, there
has been, ever since, a corresponding usage, which is the common
law of the state to this day. 4 Mass. 144-5; 6 Ibid. 438; 17 Ibid.
148-9; 1 Pick. 182, &c. The riparian owner of land in
Charlestown 'may, whenever he pleases, inclose, build and obstruct
to low-water mark, and exclude all mankind' (1 Mass, 232): it is,
therefore, a necessary conclusion, from the nature and extent of
the riparian right that grants of land on Charles river must be
construed by the rules of prerogative grants. Any construction
which would extend them beyond the limits described in the grant,
must take from the adjoining riparian owner a right which is
exclusively in him; it cannot then ever have been the law of
Massachusetts, that the grant of the ferry, in general terms,
between two opposite points on the shore of Charles river, which is
an arm of the sea, and salt water, would give any right beyond the
landings. Had the grant been definite, of the landings, describing
them by metes and bounds, with the right of ferriage over the
river, its construction must be the same as a general grant, for it
could, in neither case, be extended, so as to give a right of
landing on another man's soil.

															Independent, however, of any considerations of this kind, the
law of Massachusetts on the subject of the construction of grants,
has been settled by the repeated decisions of its supreme court,
and is thus laid down by Chief Justice PARSONS, in language which
meets this case on all points: 'Private statutes made for the
accommodation of particular citizens or corporations, ought not to
be construed to affect the rights or privileges of others, unless
such construction results from express words, or necessary
implication.' 4 Mass. 145. In case of a deed from A. to B., the
court gave it a strict and technical construction, excluding all
the land not embraced by the words of the description (6 Mass.
439-40; s. p. 5 Ibid. 356): 'where a tract of land is bounded on a
street or way, it does not extend across the street or way, to
include other lands and flats below high-water mark.' 17 Mass. 149.
In grants by towns, no land passes by implication, 'unless the
intention of the parties to that effect, can be collected from the
terms of the grant' (2 Pick. 428); 'nothing more would pass than
would satisfy the terms' (3 Ibid. 359); 'in the absence of all
proof of ancient bounds, the grant must operate according to the
general description of the estate granted.' 6 Ibid. 176.

															'By the common law, it is clear, that all arms of the sea,
coves, creeks &c., where the tide ebbs and flows, are the
property of the sovereign, unless appropriated by some subject, in
virtue of a grant, or prescriptive right which is founded on the
supposition of a grant' (6 Pick. 182); 'the principles of the
common law were well understood by the colonial legislature.'
'Those who acquired the property on the shore, were restricted from
such a use of it, as would impair the public right of passing over
the water.' 'None but the sovereign power can authorize the
interruption of such passages, because this power alone has the
right to judge whether the public convenience may be better served
by suffering bridges to be thrown over the water, than by suffering
the natural passages to remain free.' Ibid. 184. By the common law,
and the immemorial usage of this government, all navigable waters
are public property, for the use of all the citizens, and there
must be some act of the sovereign power, direct or derivative, to
authorize any interruption of them.' 'A navigable river is, of
common right, a public highway, and a general authority to lay out
a new highway must not be so extended as to give a power to
obstruct an open highway, already in the use of the public.' Ibid.
185, 187.

															From these opinions, it would seem, that the interest of the
riparian owners and of the public, would require for their
protection the application of such a rule of construing legislative
grants of any right in or over the waters of the colony, as would
confine them to the description, so that nothing should pass that
was not embraced in its terms, and no right be impaired, further
than the words of the law had done it. The supreme court of
Massachusetts have not shown any sensibility as to the rules of
construing grants, because they may be called 'prerogative' rules,
or in permitting the state to avail itself of prerogative rights. 6
Pick. 415. This prerogative rule has been adopted in New York,
without any fear that it was incompatible with the policy of a
republic. 'It is an established rule, that when a grant is
susceptible of two constructions, that should be adopted which is
most favorable to government;' 3 Caines 295; per THOMPSON
Justice, 'It is a general rule of law, that in the exposition of
governmental grants, that construction, when the terms are
inexplicit, shall be adopted, which is least favorable to the
grantee.' p. 303. LIVINGSTON, Justice, 'The idea of rolling out the
patent, to the extent of four miles from every part of the plains,
is literally impracticable, and when so modified as to be
practicable, it would give too difficult and inconvenient a shape
for location, and in a case of a location, vague and doubtful, it
would be stretching the grant over all surrounding patents, to an
unreasonable degree. A construction more convenient and
practicable, better answering the words of the grant, more
favorable to the rights of the crown, and to the security of
adjoining patents, ought to be preferred.' p. 306. KENT, Chief
Justice, 'No property can pass, as a public rule, but what was
ascertained and declared' (1 Johns. Cas. 287); a road will not pass
by general words thrown in at the end of the metes and bounds in a
sheriff's deed.' Ibid. 284, 286; S. P. 13 Johns. 551. 'Such
construction will be given as will give effect to the intention of
the parties, if the words they employ will admit of it; utres
majis valeat quam pereat .' 7 Johns. 223. But when the
description includes several particulars, necessary to ascertain
the estate to be conveyed, none will pass except such as will agree
to every description. 'Thus, if a man grant all his estate in his
own occupation, in the town of W., no estate can pass, except what
is in his own occupation, and is also situate in that town.' Ibid.
224.

															'A right to fish in any water, gives no power over the land'
(citing Saville 11); 'nor will prescription, in any case, give a
right to erect a building on another's land. This is a mark of
title and of exclusive enjoyment, and it cannot be acquired by
prescription.' 2 Johns. 362. 'A mere easement may, without express
words, pass, as an incident to the principal object of the grant,
but it would be absurd to allow the fee of one piece of land, not
mentioned in the deed, to pass as appurtenant to another distinct
parcel, which is expressly granted by precise and definite
boundaries.' Thus, where land was granted on each side of a public
road, by such description as included no part thereof, and the road
was afterwards discontinued, the grantee has no right to any part
of the site of the road. 15 Johns. 452, 455. This court has not
departed from these rules, in expounding grants to corporations.
'In describing the powers of such a being, no words of limitation
need be used; they are limited by the subject.' 'But if it be
intended to give its acts a binding efficacy, beyond the natural
limits of its power, and within the jurisdiction of a distinct
power, we should expect to find in the language of the
incorporating act, some words indicating such intention.' 6 Wheat.
442. 'It ought not to be so construed as to imply this intention;
unless its provisions were such as to render the construction
inevitable.' Ibid. 443. The act must contain words indicating such
intention, and 'this extensive construction must be essential to
the execution of the corporate power.' Ibid. 445. 'It is an obvious
principle, that a grant must describe the land to be conveyed, and
that the subject granted must be identified by the description
given of it in the instrument itself.' 3 Pet. 96. 'Whatever the
legislative power may be, its acts ought never to be so construed,
as to subvert the rights of property, unless its intention to do so
shall be expressed in such terms as to admit of no doubt, and to
show a clear design to effect the object.' 2 Wheat. 203. Where a
piece of ground in Charlestown was purchased by the United States
for a navy yard, with the assent of Massachusetts, by the following
description, 'one lot of land, with the appurtenance ,'
&c., it was held, that an adjacent street did not pass, as
there was no intention expressed that it should pass; the term appurtenances received a strict, legal, technical
interpretation. The court recognise the English rule, as laid down
in 15 Johns. 454, and refer with approbation to a case decided in
Massachusetts, in which it was held, that by the grant of a
grist-mill with the appurtenances, the soil of a way, immemorially
used for the purpose of access to the mill, did not pass, although
it might be considered as a grant of the easement, for the
accommodation of the mill. 10 Pet. 53-4; 7 Mass. 6. In this
opinion, delivered in 1836, we find the rule prescribed by the
statute of prerogative, recognised by this court, as it had been in
the supreme courts of New York and Massachusetts, as to a grant of
land, with the appurtenances; which, with the other opinions herein
referred to, would be deemed conclusive evidence of the law, on any
other question than one involving the application of the clause of
the constitution, against impairing the obligation of contracts.
But if this consideration is to have any weight in the construction
of a grant by a government, it ought to operate so as to exclude
any broader construction than the words thereof import; not only
because it may abridge the rights of riparian owners, and the
public rights of property, but for a still stronger reason-that
every grant is a contract, the obligation whereof is incorporated
in the constitution, as one of its provisions. Of consequence, the
legislature is incompetent to resume, revoke or impair it, let
their conviction of its expediency or public convenience be what it
may. It is, therefore, the bounden duty of a court, not to make a
grant operate by mere construction, so as to annul a state law
which would be otherwise valid, and make a permanent irrevocable
sacrifice of the public interest, for private emolument, further
than had been done by the terms of the grant. Such has been the
uniform course of this court.

															'The question whether a law be void for its repugnance to the
constitution, is, at all times, a question of much delicacy, which
ought seldom or ever to be decided in the affirmative, in a
doubtful case. The court, when impelled by duty to render such a
judgment, would be unworthy its station, could it be unmindful of
the obligations which that station imposes. But it is not on slight
implication and vague conjecture, that the legislature is to be
pronounced to have transcended its powers, and its acts to be
considered as void. The opposition between the constitution and the
law should be such, that the judges feel a clear and strong
conviction of their incompatibility with each other.' 6 Cranch 128.
'On more than one occasion, this court have expressed the cautious
circumspection with which it approaches the consideration of such
questions; and has declared, that in no doubtful case, would it
pronounce a legislative act to be contrary to the constitution.' 4
Wheat. 625. 'It has been truly said, that the presumption is in
favor of every legislative act, and that the whole burden of proof
lies on him who denies its constitutionality.' 12 Ibid. 436.

															From these principles, it follows, tha no legislative grant can
be held void, on account of its alleged violation of a former
grant, which is not definite in its object, the thing granted, and
its extent; if it is so imperfectly described, as to leave it
doubtful whether the subject-matter of both grants is the same, the
doubt operates conclusively in favor of the power of the
legislature to make the second grant. This consideration alone
necessarily leads to the rule for construing public grants of
property or franchise, even more strictly than in England; the
reason exists in the provision of the constitution, which prohibits
any legislative violation of the obligation of a contract; whereas,
in England, parliament can revoke or annul a grant of property or
power, as the several states could, before they adopted the
constitution.' 4 Wheat. 628, 651.

															It is, however, not necessary, for the purposes of this case, to
hold the plaintiffs to any other rules of construction, than those
laid down by this court in 6 Pet. 738, to which the court has
referred in their opinion. These rules were extracted from the
adjudged cases in England, in this and the highest state courts, as
unquestionable principles which were deemed too firmly established
to be shaken. Yet the rule thus established, is attempted to be put
down, by calling it 'the royal rule of construction.' See 6 Pet.
752. The prerogative rule, and one incompatible with republican
institutions. To remarks of this kind, I have no reply. It suffices
for me, that I find the settled doctrine of this court, to be
supported by a uniform current of authority, for five hundred
years, without contradiction; it sufficed also for the majority of
the court in this case, to refer to the case in 6 Pet. 638, as to
the rules of construing public grants, it not being deemed
necessary to lay down the qualifications which applied to
particular cases, which are noticed in that opinion.

															In the argument of this case, the counsel on either side deemed
that case worthy of a reference, nor is it noticed in the
dissenting opinion, in which the general principle laid down is
assailed; yet a most singular course has been pursued in relation
to the opinion delivered, in which that principle was sanctioned by
six of the judges. The cases referred to, the principles laid down,
the very expressions of the court, have been carefully extracted
from that case, and applied to this, in order to impress upon the
profession, the belief that the court had intended to establish a
less liberal rule of construing public grants, than the English
decisions would warrant. Whether this course has been pursued, in
ignorance of that opinion, or under an expectation, that it was
not, or will not be read, is immaterial; it is a duty due to the
profession and the court, that their principle should be known. I,
therefore, subjoin an extract, to prevent further misapprehension
of their meaning.

															'A government is never presumed to grant the same land twice. 7
Johns. 8. Thus, a grant, even by act of parliament, which conveys a
title good against the king, takes away no right of property from
any other; though it contains no saving clause, it passes no other
right than that of the public, although the grant is general of the
land. 8 Co. 274 b; 1 Vent. 176; 2 Johns. 263. If land is
granted by a state, its legislative power is incompetent to annul
the grant and grant the land to another; such law is void. Fletcher v. Peck , 6 Cranch 87, &c. A state cannot
impose a tax on land, granted with an exemption from taxation
( New Jersey v. Wilson , 7 Ibid. 164); nor take away a
corporate franchise. Dartmouth College v. Woodward . 4
Wheat. 518. Public grants convey nothing by implication; they are
construed strictly in favor of the king. Dyer 362 a; Cro.
Car. 169. Though such construction must be reasonable, such as will
make the true intention of the king, as expressed in his charter,
take effect, is for the king's honor, and stands with the rules of
law. 4 Com. Dig. 428, 554, G. 12; 10 Co. 65. Grants of the
strongest kind, ex speciali gratia, certascientia, et mero
motu ,' do not extend beyond the meaning and intent expressed in
them, nor, by any strained construction, make anything pass,
against the apt and proper, the common and usual, signification and
intendment of the words of the grant, and passes nothing but what
the king owned. 10 Co. 112 b; 4 Ibid. 35; Dyer 350-1, pl.
21. If it grant a thing in the occupation of B., it only passes
what B. occupied; this in the case of a common person, a
fortiori , in the queen's case. 4 Co. 35 b; Hob. 171;
Hard. 225. Though the grant and reference is general, yet it ought
to be applied to a certain particular, as in that case to the
charter to Queen Caroline- id certum est quod certum reddi
potest . 9 Co. 30 a; S. P. 46 a , 47 b . When
the king's grant refers in general terms to a certainty, it
contains as express mention of it as if the certainty had been
expressed in the same charter. 10 Co. 64 a . A grant by the
king does not pass anything not described or referred to, unless
the grant is as fully and entirely as they came to the king, and
that ex certa scientia , &c. Dyer 350 b; 10 Co.
65 a; 2 Mod. 2; 4 Com. Dig. 546, 548. Where the thing
granted is described, nothing else passes, as 'those lands.' Hard.
225. The grantee is restrained to the place, and shall have no
lands out of it, by the generality of the grant referring to it; as
of land in A., in the tenure of B., the grant is void if it be not
both in the place and tenure referred to. The pronoun illa refers to both necessarily, it is not satisfied till the
sentence is ended, and governs it till the full stop. 2 Co. 33; S.
P. 7 Mass. 8-9; 15 Johns. 447; 6 Cranch 237; 7 Ibid. 47-8. The
application of this last rule to the words de illas ,' in
the eighth article, will settle the question, whether its legal
reference is to lands alone, or to 'grants' of land. The general
words of a king's grant shall never be so construed as to deprive
him of a greater amount of revenue than he intended to grant, or to
be deemed to be to his or the prejudice of the commonwealth. 1 Co.
112-13 b . 'Judges will invent reasons and means to make acts
according to the just intent of the parties, and to avoid wrong and
injury which by rigid rules might be wrought out of the act.' Hob.
277. The words of a grant are always construed according to the
intention of the parties, as manifested in the grant, by its terms,
or by the reasonable and necessary implication, to be deduced from
the situation of the parties and of the thing granted, its nature
and use. 6 Mass. 334-5; S. & R. 110; 1 Taunt. 495, 500, 502; 7
Mass. 6; 1 Bos. & Pul. 375; 2 Johns. 321-2; 6 Ibid. 5, 10; 11
Ibid. 498-9; 3 East 15; Cro. Car. 17, 18, 57, 58, 168, 169; Plowd.
170 b; 7 East 621; Cowp. 360, 363; 4 Yeates 153.' United
States v. Arredondo , 6 Pet. 738-40.

															On these rules, principles and cases, I formed my opinion in
this case, after the first argument, and now feel a perfect
confidence that they fully sustain it; willing to stand before the
profession in this attitude, I will not be forced into any other,
by any omission of a duty, however unpleasant. With this extract
before them, the profession can now determine, whether the court
has impugned or affirmed the true principles of law, on the
construction of public grants, by prerogative or legislative power,
of any portion of public property held as a trust for the benefit
of all the people of a colony or state.

															The grant of the ferry is in these words, 'the ferry between
Boston and Charlestown is granted to the college.' That there was
but one ferry between those places, is admitted; its location had
been previously fixed by the general court, at certain points, in
the resolutions which they had passed from time to time; those had
been the only landings, to and from which passengers had been
taken, so that the term, 'the ferry,' was, in itself, a perfect and
complete description thereof. It had been leased to Converse, and a
clause was inserted in the case, that he was to have, for three
years, 'the sole transporting of cattle and passengers;' but this
right expired with the lease, when the ferry reverted to the
colony, unincumbered with any condition whatever; so that they
might make such grant of it, as they pleased. Had the grant to the
college been, 'as fully as the same had been held by Converse,' it
would have afforded some evidence of intention to have made it
exclusive; but no principle is better settled, than that when the
words 'as fully and entirely as it came to the hands of the king,'
are omitted, nothing passes which is not specially described. See 6
Pet. 739, and cases cited. The expired lease to Converse, then, can
have no effect on the grant, as matter of law; so far as it
indicates intention, it is adverse to the plaintiffs, for when an
exclusive right was intended, it was given in express terms;
whereas, this grant is, the ferry, illa , that ferry,
which had been established and kept up for ten years previously, at
certain landings. This pronoun 'the,' or ' illa ,' is
necessarily descriptive of the place, by direct reference to the
ferry, as located in fact and long occupation. Ferry is a term of
the law, perfectly defined, and a grant of 'the ferry,' 'that
ferry,' has the same effect as a grant of 'that land,' 'those
lands,' by which nothing else can pass but those which are referred
to in words of description, by metes, bounds or occupation.

															In ascertaining the meaning and effect of the grant of a ferry,
we must necessarily look to the ownership of the landing-places,
whether it is in the grantee of the ferry or in the public. We must
also look to the ownership of the bed of the river, over which the
right is granted. If the river is private property, a grant of a
ferry to the owner of the bed and both sides thereof, is
necessarily exclusive, to the extent of his property; the public
have no rights thereto, and no man has a right to land thereon,
without his permission. All that the owner acquires by the grant,
is the franchise of exacting a toll, for the right of passing over
his own property, the extent of which is limited thereby. The toll
is for the use of his landing, his boats, and passing over his
land, to and from them, which excludes every construction of the
grant, by which it would interfere with the right of another. 4
Burr. 2165. A grant of a ferry over a pnblic river, 'is a liberty
by prescription, or the king's grant, to have a boat for passage
upon a great stream, for carrying of horses and men, for a
reasonable toll.' Termes de la Ley 223. It is, to its extent, a
diminution of the public right, incumbering public property by the
grant of a franchise of exacting toll for passing over it in his
boats. If the landings on a public river, or an arm of the sea, are
owned by the king, the grant of a ferry includes the right of
landing on the shore, or in a public highways, as well as the
franchise of toll. But the king cannot grant to A. a ferry between
the landing-places of another, for the ferry is in respect to the
landings, which must be owned by the public or the grantee of the
ferry (Sav. 11, 14); or he must have the consent of the owner to
use them. 1 Yeates 167-9; 9 S. & R. 32. This principle is said
to have been overruled in two late cases; on examination, however,
they affirm it. In 12 East 336, 346, a question arose, how a tax
should be assessed on a ferry, on which the king's bench decided,
that it should be assessed on the landings, as the local, visible,
tangible evidence of the property in a ferry. In 6 B. & Cr.
703, the rule as laid down in Saville, was considered, when, so far
from overruling it, the two judges who gave an opinion, declared
the rule to be, that it was sufficient, if the grantee of the ferry
had a right to use the landing-places, though he did not own them,
so that the only difference between the cases is, between the
owning the landings in fee, and a right to use them, under a lease
or other consent of the owner. But if, in these or any other modern
cases, the doctrine laid down in Saville had been expressly
overruled, it would not have had a retrospective effect to 1640,
and changed the nature of the grant of this ferry. Massachusetts
would, I think, not have recognised the power of English judges, at
this day, to alter the rights of property, held by this ancient
charter. A mere grant of a ferry, by general terms, must, from its
nature, be confined to the landing-places, and the route through
the water between them; because, if extended farther, it must
interfere with the rights of riparian owners, and the common right
of every one to pass and repass on a public river or an arm of the
sea. To extend the franchise, by implication, to a place where the
grantee has neither the right of landing, or the franchise of
exacting toll for passage, is also a restraint on the king, against
granting a concurrent franchise to a riparian owner, on public
landings or the ends of roads leading to public waters, as he may
think necessary for the public good. Hence, it has been an
established principle of the common law, from magna charta to the present time, that the public right in and over all
navigable rivers and arms of the sea, continues, till an
appropriation of some part is made by grant, on good consideration,
or reasonable recompense by the grantee. 1 Ruff. 8, c. 30; 2 Inst.
58; 1 Mod. 104; Willes 268; 1 Salk. 357. A general grant by the
king, of land in a royal haven, or which is covered by the sea,
passes only the spot which is definitely granted, or which has been
identified by a possession under the grant; and what is not
described in the grant, or located by possession, is presumed to
have been abandoned. Though the grant was made in 1628, and its
general terms were broad enough to embrace the place in
controversy, the burden of showing a title to the particular spot,
was thrown on the claimant. 2 Anst. 614; 10 Price 369, 410, 453; 1
Dow P. C. 322.

															The rule that public grants pass nothing by implications, has
been most rigidly enforced as to all grants of toll for ferries,
bridges, wharves, quays, on navigable rivers and arms of the sea,
of which there cannot be stronger illustrations than in the cases
which have arisen on the customs of London, and other places which
impose tolls of various descriptions. By magna charta , the
customs of London and other cities are confimed, which has always
been held to give to those customs the force of acts of parliament;
yet these customs have always been held void, so far as they
imposed a toll at any place where the city had not a right to
demand them, or for a service or accommodation not performed or
afforded, according to the precise terms of the custom. Hob. 175-6;
1 Mod. 48; 1 Vent. 71; 1 T. R. 233; 1 Mod. 104-5.

															So it is, where a toll is demandable by an express grant, by
custom or prescription, on a public highway, in a public port, or
for the use of public property, which is termed toll
thorough , because the party claiming it is presumed to have had
no original right to the place where he demands toll. He must,
therefore, show not only his right to toll, by custom, prescription
or grant, but must show some consideration for it, some burden on
himself some benefit to the public, or that he, or those under whom
he claims, had once a right to the locus in quo , which had
been commuted for the toll, and this consideration must be applied
to the precise spot were toll is claimed. Cro. Eliz. 711; 2 Wils.
299; 3 Burr. 1406; 1 T. R. 660; 4 Taunt. 137; 6 East 458-9; 4 T. R.
667. A claim of toll at a place where no toll has been granted, or
where no consideration for it exists, is void by magna
charta and the statute of Westminster, which prohibit all evil
tolls; such as are exacted where none are due, exacting
unreasonable toll where reasonable only is due, or claiming toll
thorough , without fair consideration or reasonable recompense
to the public. 2 Inst. 219. Toll traverse , or a toll demanded for passing on or over
the private property of the claimant, or using it in any other way,
is of a different description; being founded on the right which
every man has to the exclusive enjoyment of what is exclusively his
private property, its use by others is a sufficient consideration
for the exaction of toll. Mo. 575; 2 Wils. 299; Cowp. 47-8. But
whenever toll is exacted for the passage over a public water, the
nature of it changes; its foundation not being property, it rests
on a grant or prescription, and if the toll is unreasonable, the
grant is void. 2 Inst. 221-2. The grantee must have the ownership
or usufruct of the locus in quo (1 Yeates 167; 9 S. & R.
32), and within reasonable bounds; a prescription for a quay half a
mile in length is not good, unless the vessels unlade at the wharf;
the court say, 'he may as well prescribe to the confines of
France.' 1 T. R. 223; 1 Mod. 104.

															The right of ferry is a franchise which cannot be set up,
without the license of the king (Harg. L. Tr. 10); or prescription
(5 Day's Com. Dig. 361-7; Hard. 163; Willes 512; 1 Mott &
McCord 394); 'rights of ferry on the waters of the public are not
favored;' they come too near a monopoly, and restrain trade. Hard.
163. 'Courts are exceedingly careful and jealous of these claims of
right, to levy money upon a subject; these tolls began and were
established by the power of great men.' 2 Wils. 299. A legislative
grant of a ferry, with a landing in a public road, the soil whereof
is not owned by the grantee, is void (9 S. & R. 32); a charter
to a turnpike corporation does not authorize them to erect a
toll-gate on an old road, unless specially authorized, or it is
necessary to give a reasonable effect to the statute (2 Mass.
142-6; 4 Ibid. 145-6); a town must show property in the land to
low-water mark, to authorize them to regulate its use under a law.
6 Johns. 135. The consideration of grants of ferries, is the
obligation to provide and keep up proper accommodations for the
public (22 Hen. VI. 15; 6 East 459; S. P. 1 Ves. jr. 114); the
right is commensurate with the duty, and both must exist at the
place where toll is exacted for passing. 4 T. R. 667-8; 1 Mass.
231.

															As the right to the landings, or their use, is indispensable to
the right to a ferry, a right to land at one place is not an
incident, and cannot be made an appurtenance to a right to land at
another place, even by the express words of the grant, according to
the law of this court, unless some other words are added, by way of
description, besides appurtenances. Land cannot be appurtenant to
land, nor can one corporeal or incorporeal thing be incident or
appurtenant to another thing of the same nature; the incident must
attach to the principal thing. 10 Pet. 54, and cases cited. The
principal thing is that which is of the higher and most profitable
service; the incident is something of a lower grade, which passes
as appendant or appurtenant to the principal thing, without the
words cum pertinentibus . Co. Litt. 307 a . The grant
of a thing carries all things included, without which the thing
granted cannot be had; that ground is to be understood of things
incident and directly necessary (Hob. 234); so that a man may
always have the necessary circumstances, when he hath a title to
the principal thing. Plowd. 16; Ibid. 317; Co. Litt. 56 a . A
parcel severed from a manor, does not pass by a grant of the entire
manor, unless where the severance is merely by a lease for years.
An advowson appendant does not pass by the word appurtenances, as a
part of the thing granted; it will pass where the grant is made
with the additional words, 'as fully and entirely as they came to
the hands of the king, and with his certain knowledge,' but not
without these words. 10 Co. 65; Dyer 103 b; Plowd. 6, 350 b; Ibid. 18; 2 Mod. 2; 4 Day's Com. Dig. 546-8. When the
word appurtenances is in the grant, there must be an intention
manifested by other words, so that the court can be enabled to give
them their intended effect, and hold them to pass what had been
occupied, or used, with the thing directly granted. Plowed. 170-1;
11 Co. 52; Cro. Jac. 170, 189; Dyer 374; 7 East 621; Cowp. 360;
Cro. Car. 57-8. This is the rule in cases of private grants of
land, which are taken most strongly against the grantor and in
favor of the grantee, which has never been questioned; a
fortiori , it must apply to public grants, and it follows
conclusively, that where a grant by the king, or a colony, omits
even the word appurtenances, it will not pass a right which would
not pass by that word alone. There is, however, another
unquestioned rule, more directly applicable to the grant of a
ferry, than the mere grant of land, or a substance to which a thing
of the same substance cannot be appendant or appurtenant.

															'But the grant of a franchise, a liberty, a particular right, on
land or water, passes nothing more than the particular right. Co.
Litt. 4 b; 4 Day's Com. Dig. 416, 542; 2 Johns. 322. The
grant of a franchise carries nothing by implication. Harg. L. Tr.
33. Every port has a ville , and the grant of the franchise
of a port shall not extend beyond the ville , because the
court cannot notice it any further ex offcio , though they
will award an inquest in some cases, to ascertain the extent. Harg.
L. Tr. 46-7. Ancient grants and charters are construed according to
the law at the time they were made. 2 Inst. 282; 4 Day's Com. Dig.
546, 419; Co. Litt. 8 b , 94 b; 9 Co. 27-8. The
location of a patent 160 years old, shall not be extended beyond
the actual possessio pedis under it; its boundaries must be
ascertained by possession, and not the words; every doubt ought to
be turned against the party who seeks to extend them. 7 Johns. 5,
10, 14. 'It is undoubtedly essential to the validity of every
grant, that there should be a thing granted, capable of being
distinguished from other things of the same kind.' 7 Wheat.
362.

															A toll by prescription is better than by grant (2 Inst. 221); so
is a franchise of a port, because the extent is according to the
prescription (Harg. L. Tr. 33); but it must be confined to the
subject-matter and the ancient use. 1 Wils. 174; 6 East 215; 7
Ibid. 198; 2 Conn. 591; S. P. Willes 268; 4 T. R. 437; 2 H. Bl.
186. Under a charter for the erection of a road, canal or bridge,
the corporation must confine their action within the precise limits
designated; any deviation from the route prescribed makes them
trespassers. Cowp. 77; 2 Dow P. C. 519, 524. The law is the same,
though the road or canal is the property of the public, and
constructed for general benefit (20 Johns. 103, 739; 7 Johns. Ch.
332, 340); the definition of a road is, 'the space over which the
subject has a right to pass' (2 T. R. 234); beyond which there is
no road; so of a canal, bridge or ferry, with a grant of toll for
passing; the nature and object of the grant in prescribing bounds
is necessarily a limitation; nor does it make any difference,
whether the toll is demanded in virtue of a direct grant, or one
presumed by prescription, where there is no consideration existing
at the precise point where toll is exacted, as is evident from the
reason of the rule; 'because it is to deprive the subject of his
common right and inheritance to pass through the king's highway,
which right of passage was before all prescription.' Mo. 574-5;
Plowd. 793; 2 Wils. 299. If toll thorough is prescribed for, for
passing through the streets of a town, the party must show the
streets which he was bound to keep in repair, and that the passage
was through such streets. 2 Wils. 299.

															It would be easy to add references to other cases, but as the
principles settled in those already cited, have for centuries been
the established law of England, and the received law of all the
states, since their settlement, it is evident, that no construction
can be given to this grant, which will make it pass the exclusive
right of ferriage between Boston and Charlestown. It can have no
analogy to cases of donations to charities, unless it shall be held
to be a charitable act to roll out the grant (in the words
of Chief Justice KENT, 3 Caines 306) to the extent of some miles of
the shores of a great river, so as create a monopoly of the right
of passage, and prevent the legislature from promoting the public
welfare, by the grant of a concurrent ferry. On the first argument
of this case, it was contended, that the grant extended one-third
of an ancient day's travel, a dieta , or seven miles from the
landings on each side of the river, which would be twenty-eight
miles; this extravagant pretension was abandoned at the last
argument, so that it is unnecessary to test its validity. But the
plaintiffs still insist, that their grant must be so extended as to
prevent any injurious competition for the toll due for passage of
boats between the places, at ferries contiguous, or so near as to
diminish their profits, and also to secure to them the whole line
of travel to the landings on each side of the river. This is the
ground on which they ask an injunction to prevent the unisance, by
the erection of another bridge, and a decree of suppression, if it
should be erected; because, claiming under the ferry grant, the
franchise thereby granted is imparted to the bridge to its full
extent. In considering this position, I will first examine the
authorities on which it is attempted to be supported.

															In the Year Book, 22 Hen. VI. 14-15, PASTON, J., said, 'And the
law is the same, if I have, from ancient time, a ferry in a ville , and another should set up another ferry on the same
river, near to my ferry, so that the profits of my ferry are
diminished, I may have against him an action on the case.' That
this has been the received law ever since, is not to be questioned;
but in its application to the present ferry grant, there are two
important differences to be considered. The rule applies only to ancient ferries; that is, ferries by prescription, or a
presumed grant; next it applies to ferries in a ville , which
is thus defined: ' Ville is sometimes taken for a manor, and
sometimes for a parish or a part of it' (Cow. L. Inst.); 'a tithing
or town' (1 Bl. Com. 114); 'consisting of ten families at least' (5
Day's Com. Dig. 249; 2 Str. 1004, 1071); 'the out part of a parish,
consisting of a few houses, as it were separate from it.' 3 Toml.
L. Dict. 746 b: see Co. Litt. 115 b. From the nature
of such a ferry, the rule applies only within these places; it
never has been applied in England, to ferries on arms of the sea,
between two places on its shores; the doctrine was expressly
repudiated in Tripp v. Frank , 4 T. R. 667, where
there was exclusive right of ferry by prescription, across the
Humber, between Kingston and Barton, the profits of which were
diminished by the defendant's ferry from Kingston to Barrow. It
could not apply in this country, where the right of ferry exists
only by legislative grant, and where we have no such subdivisions
as correspond to a ville in England. Our towns, boroughs and
cities are laid off by established lines, without regard to the
regulations of Alfred, or the number of families or houses
requisite to compose a hamlet, a ville , a part of a manor,
or parish.

															The inhabitants of these villes did not own the land they
occupied; they held under the lord of the manor, in whom the right
of ferry was vested, as the owner of the soil, and a grant of the
franchise by prescription. The tenant of that part to which it
attached by prescription, being obliged to provide and maintain
boats, &c., was protected against competition by the other
tenants of the ville , who held under the same lord. It was a
part of the tenure by which the land was held, that the tenants
should pass at the ferry; should grind the corn raised on the same
land, at the lord's mill, or that of his tenant, so that the
profits of the ancient mill should not be impaired to their injury.
22 Hen. VI. 14-15, by PASTON, J. The rule, of course, could have no
application beyond the ville or manor, in which there
existed such privity of tenure; the nature of the right is
incompatible with the jus publicum in public waters, or
private rights of property held independently of the lord of the
manor. Hence, we find no case arising in England, in which this
right has been sustained, on any other ground than tenure, which is
a conclusive reason against the application of the rule to any case
in this country, where no such tenure exists, or can exist, as in
English manors.

															The plaintiffs have considered the grant of a ferry as analogous
to that of a fair or market, and have relied on cases in which
damages have been recovered for erecting rival fairs or markets;
but these cases admit of the same answer as those of ferries by
prescription within manors; they grow out of feudal tenures, are
founded on feudal rights, and are wholly unknown in this country,
either by grant or prescription.

															Markets and fairs, however, differ from other franchises; the
grant or prescription extends, ex vi termini , to seven miles
or the dieta . F. N. B. 184 n.; 3 Bl. Com. 219; 2 Saund.
171-2. The word 'near' refers to the dieta , in case of a
rival fair or market; and to the ville , in case of a ferry;
if it is beyond, no action lies. 3 Bl. Com. 219. In cases where the
action is sustained, it is not on the right of property; it must be
an action on the case for consequential damages, arising from an
unlawful act which injures another; if the act is lawful, no action
lies; one may erect a mill near the ancient mill of another,
because he is not bound to keep it in repair (22 Hen. VI. 14),
unless a special custom is alleged and found, as in 2 Vent.
291-2.

															Any man may keep a ferry for his own use, between his own
landings, within the limits of a ferry by prescription, or the
king's manor (Harg. L. Tr. 6, 73), but if he do it for toll,
without license, he usurps a public franchise, and is finable, on a
presentment, or quo warranto (Ibid. 73), he is not bound to
keep up his boats, and as he does not share the burdens, he shall
not have the benefit of the franchise (3 Bl. Com. 219), and the act
being illegal, when done 'without lawful authority or warrant,' it
is a nuisance, and case lies for damages consequent upon it (1 Mod.
69; 2 Saund. 172-4; Bull. N. P. 76), but the action does not lie,
if the act, though unlawful, was not an interference with the right
of the other, and within the limits of his prescription. Harg. 47.
The king alone can prosecute for a purpresture, or an usurpation on
the Jus publicum of a franchise, burdensome to the subjects
generally (Harg. L. Tr. 85; 2 Johns. Ch. 283; 18 Ves. 217-19), if
it is outside the limits of an ancient ferry, a grant of the
franchise, if fairly made, gives a complete right to the enjoyment
of the franchise which none can disturb (Willes 508), because none
but the king can interfere.

															There is no case, where the grant of a new ferry or other
franchise has been held void, on the sole ground of its interfering
with the profits of an old one. Chapman v. Flaxmann ,
was on a special custom laid and found, that all the inhabitants of
the manor which belonged to the plaintiff, were bound to grind at
his mills; the defendant occupied a messuage in the manor, and
erected a mill, to the plaintiff's injury, who recovered damages on
the ground of the custom. 2 Vent. 291-2. In Butler's Case ,
the suit was to repeal a patent for a market at C., reciting that
there was an ancient market within half a mile, and that the patent
was obtained on an ad quod damnum , executed by surprise, and
without notice, to the great damage of the former market, all of
which was admitted by a demurrer, and the patent was repealed. 2
Vent. 344; 3 Lev. 220, 223. The suit was by the king, at the
relation of the inhabitants of Rochester, and the patent avoided,
on the ground, that 'the king has an undoubted right to repeal a
patent wherein he is deceived, or his subjects prejudiced,' that it
was jure regio by the common law (3 Lev. 221-2; but it is
not asserted in any part of the case, that the patent was
repealable, on the ground of the right of the relators to an
exclusive market, or that they had any remedy otherwise than at the
suit of the king. In the report of the case, in Levinz, it appears,
that the city of Rochester was held of the king by a fee-farm rent
of twelve pounds per annum, the effect of which was to make the
citizens thereof the fee-farm tenants of the king; as such they
were privileged suitors, and entitled to redress, when other
tenants are not, which will explain the cases cited from Hardres,
decided in the exchequer, on bills in equity, to suppress rival
ferries, mills and markets.

															In Churchman v. Tunstall , the plaintiff was the
farmer of a common ferry, time out of mind, at a fee-farm rent; the
defendant owned the land on both sides of the Thames, and set up a
ferry, within three-fourths of a mile of plaintiff's ferry, to his
prejudice. The court dismissed the bill, 'because it came too near
a monopoly and restrained trade, and because no precedent was shown
in point. The case of a beam that had been urged, was of a beam in
the king's own manor.' Hard. 162-3. In Green v. Robinson
and Wood , there was a custom in a manor, held by the king in
fee-farm, that all the tenants and resiants thereof should grind at
the lord's mill and not elsewhere; the defendant had erected
another mill, outside of the manor, near the old mill, by reason
whereof, many of the tenants left the lords mill, to his great
prejudice; the bill was for the demolishing the new mill. The court
(HALE, ATKINS, TURNER) said, that it was lawful for any tenant to
set up a mill upon his own ground, out of the manor, but not within
the manor; they would prohibit him from pursuading the tenants to
grind at his mill, or fetching grist out of the manor thereto, but
could not decree the mill to be destroyed, unless erected within
the king's manor, to the prejudice of his mill. No
precedents were shown, and the bill was dismissed, but without
prejudice to the right of the lord of the manor. Hard. 174-5. In White and Snoak v. Porter , one of the plaintiffs was
a copyhold tenant for life, the other, a purchaser of the
inheritance of land in the king's manor, held under a fee-farm
rent, who filed their bill for the suppression of a rival mill,
erected within the manor. It was decreed, that the defendant should
not take away or withdraw any grist from the old mill; but his mill
was not decreed to be demolished, for that can be done in the
king's own case only, or in the case of his patentee, who is
entitled to the privilege of this court (of exchequer), 'And it was
also held in this case, that to compel all the tenants within the
king's manor, to grind at the king's mill, is a personal
prerogative of the king's, which no other lord can have, without
tenure, custom or prescription. But it will extend to a fee-farm,
because it is for the king's advantage. And that the custom in this
case does not go to the estate, but to the thing itself, and runs
along with the mill, into whose hands soever it comes, that the
suit here must be as debtor and accountant only, because the
copyholder for life is not liable to the fee-farm. And if two join,
as they do here, where one of them is, and the other is not, liable
to the fee-farm, that is irregular, unless that other be a
privileged person. Hard. 177-8. In the Mayor, &c. v. Skelton , the bill was for demolishing a mill, near to a
manor of the king's, which was granted to the plaintiffs in
fee-farm, whose mill was prejudiced by the one erected by the
defendant. A search was directed to be made for precedents, but
none could be found, and the court held, that a mill, not within
the king's manor, could not be demolished, where there was no
tenure nor custom, whereby the inhabitants are bound to grind at
the king's mill. Hard 184-5.

															Two cases which involve the same principle, are reported by Lord
HALE, in his Treatise de Portibus Maris . The town of New
Castle on Tyne v. Prior to Tinmouth , and the City of
Bristol v. Morgan et al. Both places were within the
king's manors, and were held by fee-farm rent, the plaintiffs were,
therefore, privileged suitors, and having made out their case, they
obtained decrees for the demolishing the erections complained of,
which were within the town and city, among which there was a ferry;
upon which Lord HALE remarks, 'Upon these records, these things are
to be noted and collected, viz: 1. In fact, these places (in which
the erections were demolished) were within the respective ports of
Bristol and New Castle, and between the port-town and the sea. 2.
That an erection of houses, or places of receipt for mariners,
contiguous to, or near to, the water of that part, between the port
and the sea, is an injury to the port-town, a forestalling of it,
and a prejudice to the customs. 3. That it may, therefore, be
demolished by decree or judgment.' 'But if it had not these
circumstances, it had been otherwise. 1. If it had been built contiguous to the port-town, it should not have been
demolished; and upon that account, the buildings below the town do
continue, and are not within the reasons of these judgments. 2. If
it had been built above the port, it should not have been
subject to such a judgment, for it is, in that case, no forestall
between the port and the sea, and so no nuisance to the port-town,
as a port-town. 3. If the building had been out of the
extent of the port, as if it had been built three or four miles
below the ville , it had not been within the reason of either
of these judgments, nor might it have been demolished, for it could
not be a nuisance to the port.' Harg. L. Tr. 79, 83.

															In these and all other cases where rival ferries have been
suppressed by decrees in the court of exchequer, they are suits by
the king, or his fee-farm tenants, who, by being his debtors and
accountants, are entitled to the same privileges of personal
prerogative as the king himself, and may sue in the exchequer, as
privileged persons. But no decree for a suppression will be
rendered in any case, unless the erection is within the king's
manor, and no restraint will be put upon the rival mill or ferry,
if there is no tenure, custom or prescription, which gives an
exclusive right to the plaintiff, to compel the tenants of the
manor to resort to his mill, &c.

															It has been contended by the plaintiffs, that the case in Hardr.
162, was overruled, and a contrary principle established
afterwards, for which a reference is made to the argument of the
attorney-general, in 2 Anstr. 608, and the opinion of the Chief
Baron, in p. 416; but on a close examination of the cases, there
will be found no discrepancy between the first and second decisions
of the case of Churchman v. Tunstall . As reported in
Hardr. 162, the plaintiff sued in the exchequer, as 'a farmer of a
common ferry, at Brentford, in Middlesex, at a fee-farm rent; the
ferry was a common ferry, time out of mind, and he laid in his
bill, that no other person ought to erect any other ferry, to the
prejudice of his, &c.' He did not lay the ferry to be within
the king's manor, nor allege himself to be a fee-farm tenant of the
king; he was, therefore, not a privileged suitor in the exchequer,
so as to be able to avail himself of the personal prerogative of
the king. The ferry was also laid to be a common ferry. In the case
afterwards brought, the plaintiff sued 'as tenant of an ancient
ferry under the crown' (Anstr. 608); on which the Chief Baron, in
referring to the decisions of Lord HALE, remarks: 'But the cases
cited, and those which Lord HALE has given us, in his Treatise de Portibus Maris , clearly prove, that where the king claims
and proves a right to the soil, where a purpresture and nuisance
have been committed, he may have a decree to abate it.' Attorney-General v. Richards , Anstr. 616.

															This remark reconciles all the cases which have been referred
to, showing that where the court of exchequer interferes to
suppress any rival erection as a nuisance, it is where the locus
in quo is the property of the crown, and the suit is brought by
him, or his tenants, who sue in his right. Such was the case in
Anstruther; the nuisance complained of was 'the erection of a wharf
in Portsmouth harbor, which prevented vessels from sailing over the
spot, or mooring there,' &c.; it was abated, on the ground of
the property being in the king, and the erection being to the
injury of the public. In such cases, the court of exchequer acts on
an information by the attorney-general, or at the suit of the
king's patentee, or fee-farm tenant; but this is a proceeding
peculiar to that court. A court of equity never grants an
injunction against a public nuisance, without a previous trial by
jury, as it would, in effect, be tantamount to the conviction of a
public offence. Harg. L. Tr. 85; 18 Ves. 217, 219; 19 Ibid. 617,
620; 2 Johns. Ch. 283.

															Where a patent is repealed in chancery, on a scire
facias , it is at the suit of the king, on the ground, that he
was deceived, and his subjects thereby injured; but there is no
case where a court of chancery has ever decreed the prostration of
a mill, of a ferry, or other erection, on the sole ground of its
diminishing the profits of an ancient one, or the want of power in
the king to grant a concurrent franchise, at any place not within
the limits of one held by grant, custom or prescription.

															Taking, then, the cases relied on by the plaintiffs, as they are
reported in the books, they not only fail to support their
position, but directly overthrow it. The principles established are
equally fatal to their right to recover damages for the
consequential injury, by an action on the case, or to suppress any
rival ferry, by an assize of nuisance at law, or a bill for an
injunction or suppression in equity. They must, in either case,
show in themselves a right of property or possession in the place
where a rival ferry is established, or a special custom, compelling
the inhabitants of Boston and Charlestown to cross at their ferry,
or they can have no standing in any court, even if they were
privileged suitors, in virtue of the personal prerogative of the
king, as the fee-farm tenants of a royal manor. As the plaintiffs
do not sue in this, or any analogous character, by special
privilege, it is unnecessary to show, that they cannot be relieved,
in the character in which they sue, on any principle laid down in
the case from Levinz, or those cited from Hardres and Anstruther.
An explanation of these cases was necessary, because they have been
pressed, with confidence, as in point of the present, and for
another reason; when explained, they show, that to bring the
plaintiffs' case within them, it is required, that they sue by the
highest and most odious prerogative of the crown; that which is
personal to the king for his private advantage, in his demesne
lands. It was also proper as an argumentum ad hominem , to
those who feel any sensibility in adopting the royal or prerogative
rule of construing public grants, so as to impair the public
interest, by no constructive extention of them, to any public
property not described expressly, or included by the necessary
implication of its terms. With this explanation, it will not be
difficult to ascertain which kind of royal prerogative is most
congenial to our republican institutions; that which is personal,
within a royal manor, and enjoyed for private profit, or that which
is a trust for the whole kingdom, and for the benefit of all its
subjects; and whether the majority or minority of the court have
properly applied the principle of the common law of ferries, which
was adopted in Massachusetts, as the law of the colony, in 1640,
when the grant was made.

															The case of Chadwick v. The Haverhill Bridge has
been pressed, as evidence of the law of Massachusetts, not as the
decision of any court, but as expressing the opinion of one eminent
lawyer who brought the action, and of another who decided it as an
arbitrator. Though I entertain the most profound respect for the
professional character of both the gentlemen alluded to, I cannot,
as a judge, found my judgment on any opinion expressed by either,
because not given under judicial responsibility. There can be but
few cases, in which the mere opinion of counsel ought to be taken
as authority in any court; but in this court, testing the validity
of a state law, by the rules which are imperative upon us, I feel
forbidden to defer my settled opinion on the law of the case, to
that of any individual, however eminent. There is no task more
difficult or invidious, than to decide who were those eminent and
distinguished members of the profession, in former times, or who
now are, to whose opinions a court of the last resort ought to pay
judicial deference, and who were and are not deserving of such
pistinguished notice. Judges would incur great hazard, in making
the selection, and would form their opinions by very fallible
standards, if they looked beyond the state law on which the case
arises, the provision of the constitution which applies to it, and
the appropriate rules and principles which have been established by
judicial authority. It is a risk which I will not incur, on any
question involving the constitutionality of a state law; for if the
case shall be so doubtful, that any man's opinions, either way,
which are not strictly judicial and authoritative, would turn the
scale, I would overlook them, and decide according to the settled
rule of this court: that in every case, the presumption is, that a
state law is valid, and whoever alleges the contrary, is bound to
show and prove it clearly. In obedience to this rule, I cannot
recognise, in any private opinions of any description, by
whomsoever, or howsoever, expressed or promulgated, any authority
for rebutting such presumption. No more salutary rule was ever laid
down by this court, or impressed on its members, in plainer
language, than what is used by the late chief justice in the cases
cited; nor can there be any rule in favor of the most strict
observance of which, there can be any reasons which operate with
such a weight of obligation on the court at this ought.

															There is no court in any country which is invested with such
high powers as this: the constitution has made it the tribunal of
the last resort, for the decision of all cases in law or equity
arising under it. The 25th section of the judiciary act has made it
our duty to take cognisance of writs of error from state courts, in
cases of the most important and delicate nature. They are those
only in which the highest court of a state has adjudged a state law
to be valid, notwithstanding its alleged repugnance to the
constitution, a law or a treaty of the United States. When this
court reverses the judgment, they overrule both the legislative and
judicial authority of the state, without regard to the character or
standing, political or judicial, of the individual members of
either department; surely, then, it is our most solemn duty, not to
found our judgment on the opinions of those who assume to decide on
the validity of state laws, without any official power, sanction or
responsibility. If we defer to political authority, there can be
none higher than the three branches of the legislative power; if to
judicial authority, the highest is the solemn judgment of the
members of the court, in which is vested the supreme judicial power
of the state.

															There is another still higher consideration, which arises from
the effect of a final judgment of this court under the 25th
section: it is irreversible; it is capable of no correction or
modification, save by an amendment to the constitution; it must be
enforced by the executive power of the Union, and the state must
submit to the prostration of its law, and its consequences, however
severe the operation may be. That the case ought to be clear of any
reasonable doubt in the mind of the court, either as to the law, or
its application, is a proposition self-evident; and there are no
cases to which the rule applies with more force, than to those
which turn on the obligation of contracts. If we steadly adhere to
it, as a fundamental rule, that the judgment of the supreme court
of a state, on the validity of its statutes, shall stand affirmed,
until it is proved to be erroneous, the effect would be most
important on constitutional questions, and lead to a course of
professional and judicial opinion, which would soon assign to all
the now doubtful parts of the constitution, a definite and
established meaning.

															The plaintiffs have also relied on the opinion of the late
learned chancellor of New York, in 4 Johns. 160 and 5 Ibid, 111-12,
in which he puts the case of a rival ferry set up so near an old
one as to diminish its profits, and refers to the rule laid down in
F. N. B. 184; Bro. Abr., Action on the Case, pl. 56; tit. Nuisance,
pl. 12; 2 Roll. Arb. 140; 3 Bl. Com. 219; 2 Saund. 172; and which
is taken from the 22 Hen. VI. 14, 15. In putting this case as an
illustration of those then before him, this great jurist stated the
proposition in general terms merely, without that precision which
he adopts as to the points directly presented, and he has deduced a
rule much broader than the cases warrant, when closely examined.
For the purposes of the cases then under consideration, the broad
rule laid down might well be applied to the grants contained in the
laws of the state on which the cases turned, as a safe guide to
their construction. But when a question depends on the law, as
established by the adjudged cases and old writers of standard and
adopted authority, we must take it from the books themselves.
Having already reviewed the cases in detail, from the 22 Hen. VI.,
and stated my conclusions from them, I submit their correctness,
without further remarking upon the rules prescribed, in relation to
the extent of the rights of ferry.

															I would have remained satisfied with what has been already said,
if there had not been these expressions in the opinions in 4 Johns.
Ch. 160-1: 'It would be like granting an exclusive right of
ferriage between two given points, and then setting up a rival
ferry, within a few rods of those very points, and within the same
course and line of travel. The common law contained principles
applicable to this very case, dictated by a sounder judgment, and a
more enlightened morality.' After a reference to the rule laid down
from the books which are cited, the opinion proceeds: 'The same
rule applies, in its spirit and substance, to all exclusive grants
and monopolies. The grant must be so construed as to give it due
effect, by excluding all contiguous and injurious competition.' As
these propositions are supported by an authority which cannot be
too highly respected, and is difficult to oppose with success, I
feel bound to support the negation of them, by a reference to cases
and books which would have been deemed unnecessary, but for this
opinion.

															In Harg. L. Tr. 83, it has been seen, that Lord HALE uses the
word contiguous to a port-town, in contradistinction to within it, and most distinctly negatives the idea, that a
contiguous ferry or other erection would be demolished, however
injurious it might be. In his opinions as chief baron of the
exchequer, in the cases cited, he decided upon the same principle.
The authority of his treatise de Portibus Maris is
universally admitted, as the best evidence of the law, as it was
understood in his time, in which he says, 'It is part of the jus
regale , to erect public ports; so, in special manner, are the
ports and the franchises thereof.' Harg. L. Tr. 53-4. 'A port hath
a ville , or city or borough,' keys, wharves, cranes,
warehouses and other privileges and franchises. Ibid. 46, 77. 'If a
man hath portum maris , by prescription or custom, it is as a
manor; he hath not only the franchise but the very water and soil
within the port.' Ibid. 33. 'Every port is a franchise or liberty,
as a market or a fair, and much more.' It has, of necessity, a
market and tolls incident; it cannot be erected without a charter
of prescription (Ibid. 50-1); or if it is restrained, it cannot be
extended or enlarged in any other way. Ibid. 52. Where it is by a
custom or prescription, the consideration is the interest of the
soil both of the shore and town, and of the haven wherein the ships
ride, and the consequent interest of the franchise or liberty,
which constitute the port in a legal signification; which are
acquirable by a subject by prescription, without any formality
(Ibid. 54); and in ordinary usage and presumption they go together.
Ibid. 33. The extent of the port depends on the prescription or
usage; the court cannot take notice of its extent, farther than the ville or town at its head, that gives it its denomination;
if any further extension is alleged, it is ascertained by the venire facias de vicineto portus . Ibid. 47, 70. The
difference between a port by charter, and by custom or
prescription, is thus illustrated: 'If the king, at this day, grant portum maris de S. , the king having the port in point of
interest, as well as in point of franchise, it may be doubtful,
whether, at this day, it carries the soil or only the franchise,
because it is not to be taken by implication.' 'But surely, if it
were an ancient grant, and usage had gone along with it, that the
grantor had also the soil; this grant might be effectual to pass
both, for both are included in it.' Harg. 33; s. p. Cowp. 106.

															The difference between an ancient grant, and one made at this
day, is this: If made beyond legal memory, and in terms so general
and obscure, as not to be any record pleadable, but ought to have
the aid of some other matter of record, within time of memory, or
some act of allowance or of confirmation; they shall now be allowed
only to the extent of such allowance or confirmation, and shall be
construed according to the law when it was made, and the ancient
allowance on record (9 Co. 28 a ); or prescription will be
taken as evidence of the existence of a grant, and to supply its
presumed loss by the lapse of time (Bl. Com. 274; 2 Ibid. 265);
though the record is not produced, or proof adduced of its being
lost, a jury will presume the grant (Cowp. 110-11); but if thegrant
is within time of memory, and wants no allowance, confirmation or
presumption, to give it effect, it is pleadable, without showing
either. 9 Co. 28. This is called a grant at the present day; an
ancient grant is by prescription. When a grant of the franchise of
a port by prescription, or an ancient grant of an ancient port, is
thus made out, in imports the incident franchises of markets,
fairs, ferries, keys, wharves, landings, &c., and the toll for
each; and the franchise is supposed to have been founded on the
right of soil in fee-simple, for no prescription can be founded on
any less estate. 2 Bl. Com. 265. As tenant in fee of soil and
franchise, to the extent of the port, no right of property can be
of a higher grade, or be entitled to a higher degree of protection
by the law; the fee of the soil is a greater right than a mere
liberty or franchise in or over it; the principal franchise of a
port is higher and more important than any of the incidental
franchises. When once established, the king cannot resume them,
narrow, or confine their limits (1 Bl. Com. 264); for the crown
hath not the power of doing wrong, but merely of preventing wrong
from being done. Ibid. 154. But however high and sacred these
ancient grants of soil and franchise are, they are not protected
from grants by the king, which may diminish their profits by
injurious and contiguous competition; the contrary doctrine is laid
down by Lord HALE, and there cannot be found in the common law, a
case or dictum to the contrary.

															'If A. hath a port in B., and the king is pleased to erect a new
port, hard by that, which it may be is more convenient for
merchants, though it be a damage to the first port, so that there
be no obstruction of the water, or otherwise, but that ships may,
if they will, arrive at the former port, this, it seems, may be
done; but then this new port must not be erected within the
precincts of the former:' 'he may erect a concurrent port, though
near another, so it be not within the proper limits of the former,
as shall be shown in the case of Hull and Yarmouth, hereafter.'
Harg. 60, 61-6, 71. 'But it cannot be erected within the peculiar
limits, by charter or prescription, belonging to the former port,
because that is part of the interest of the lord of the former
port. Neither can the first port be obstructed, or wholly defaced,
or excluded for arrival of ships, but by act of parliament, or the
consent of the owners of the ancient port.' Ibid. 60, 61. 'If a
subject, or the king's fee-farmer has a port at R., by prescription
or charter, and the king grants that no ships shall arrive within
five miles, he cannot within that precinct, erect, de novo ,
a port, to the prejudice of the former, though he might have done
it, without this restrictive clause; but by this inhibition, this
precinct is become, as it were, parcel of the precinct of the
port.' Ibid. 61; s. p. 66-7. Both of the ferries of Yarmouth and
Hull, were held under the crown, at a fee-farm rent. Ibid. 61, 68.
So that they united the highest rights of property, with all the
privileges which devolved on them, in virtue of the personal
prerogative of the king, and by the force of his grant. Yet neither
availed them to prevent injurious and contiguous competition, by
the erection of a concurrent and rival port. Ibid. 70. If the king
own the port, he may license the erection of a new wharf, 'whereof
there are a thousand instances.' Ibid. 85. The king's tenants
cannot set up a port. Ibid. 51, 73. A subject who claims a port by
prescription, must own the shores of the creek or haven, and the
soil; 'but he hath not thereby the franchise of a port, neither can
he so use or employ it, unless he hath had that liberty, time out
of mind, or by the king's charter;' 'he cannot take toll or
anchorage there, for that is finable by presentment, or quo
warranto .' Ibid. 54, 73.

															In these unquestioned principles of law, we find its rules which
define the nature and extent of all franchises on the shores or
waters of public rivers, havens or arms of the sea, which can be
enjoyed by an individual or a corporation. If it is by
prescription, or an ancient grant, it is founded on an existing
right of property in fee; the consideration for the presumed grant
of tolls is for passing over or using private property, and the
franchise is of a toll traverse, which, from its nature, is
exclusive to the extent of the private ownership, which is defined
by the possession and usage, which constitute the title by
prescription. If the right to property is prescriptive, but the
franchise is granted by a charter, within legal memory, which is in
existence, is pleadable, and is or can be produced, then, as
nothing passes by implication, the court ex officio , can
look only to the charter for the extent of the franchise; if it is
alleged, that it has had a greater extent by usage, an inquest goes
to ascertain the fact. In this case, too, the franchise being a
toll traverse, the jury may find it to the extent of the usage
under the charter, and the right of property by prescription, so
far as they unite. But when there is no existing right of property,
except that which is the jus publicum , a grant of toll for
its use, or passage over it, to any subject, is the franchise of
toll thorough, or toll on a public highway, which is void, whether
by prescription or the king's charter, unless for good
consideration or reasonable recompense, which must be made to
appear to have existed at the time of the grant, and to have been
continued so long as toll is exacted. In such case, the franchise
is never extended by any implication or construction, but is
confined to the precise place where the consideration exists; and
so far from the usage of exacting toll at any other spot being
evidence of a right, it is finable on indictment or quo
warranto . The customs of London to the contrary, though by
their confirmation by magna charta , they have the force of
acts of parliament, are illegal and void as usurpations on the
public right, and injurious to the people at large; and even the
king's fee-farm tenants, in his own manors, are not exempted from
the rule. An evident consequence of these principles is, that the
king may grant a concurrent franchise, contiguous, or near to the
place where a former one exists, either by charter or prescription,
if it is not within its precise limits. Whenever he shall deem it
necessary for the public good, it is his right by prerogative, his
power is discretionary, which the law will not control, unless it
is so exercised as to prejudice the right of property existing
previously. So long as its possession and use is left to the
proprietor, the law does not notice the mere diminution of profits
of an existing franchise on a public river, or an arm of the sea,
by the erection or a rival franchise beyond its limits; the
competition is beneficial to the public, by the increased
accommodation afforded, and a diminution of toll exacted.

															In deciding on prerogative or legislative grants, the court can
look only to the power and right by which they are made; questions
of policy, expediency or discretion, are not judicial ones; if
necessity or public good brings a power into action, the court
cannot judge of its degree or extent. 4 Wheat. 143. It 'would be to
pass the line which circumscribes the judicial department, and to
tread on legislative ground. This court disclaims all pretensions
to such a power.' Ibid. 423. The same rule applies to all officers
or tribunals in whom a discretionary power is invested by law,
without any appeal or supervisory power in any other tribunal being
provided; their acts done in the exercise of an honest and sound
discretion, can be invalidated only by fraud in the party who
claims under them, or an abuse or excess of authority in the
depository of the power. 6 Pet. 729; 1 Cranch 170-1; 2 Pet. 412; 4
Ibid. 563; 2 Ibid. 167; 20 Johns. 739-40; 2 Dow P. C. 521, &c.;
10 Pet. 477-8.

															That the power of the king over navigable rivers and arms of the
sea is plenary, is undoubted; the power is vested in him for the
public good, and it is his duty to so exercise it; he may make an
exclusive grant of a franchise, or may make concurrent grants, at
his discretion, subject to the qualifications stated. He may grant
a monopoly, on proper consideration, but his grant of a franchise
is not an exclusive one per se; it must be so in terms, or
it is limited to the precise place and object; and the king is at
liberty to make concurrent grants at his pleasure. The power of the
king is thus declared by Lord THURLOW: 'The king may, if he
pleases, grant licenses to twenty new play-houses, and may give
liberty to erect them in Covent Garden and Drury Lane, close to
those which are established (1 Ves. jr. 114); but he adds, 'but
would it be right to do so?' This is matter of discretion, which is
referred to the chancellor, as the keeper of the king's conscience,
who, after hearing the case, advises the granting or refusing the
patent as he may think just, as may be seen in the case Ex parte
O'Reilly , 1 Ves. jr. 113, 130. The ancient mode, on an
application for a grant, was to sue out a writ of ad quod
damnum , on which an inquest was held, and on the return of the
inquisition, the grant was made or denied; but it may be dispensed
with by a clause of non obstante in the patent. F. N. B.
226. The grant is, therefore, valid, without the writ, but is
voidable by the king on a scire facias , if it is injurious
to another, on the ground of the king having been deceived. 3 Lev.
222. But the grant could not be annulled in a collateral action
between A. and B., otherwise, there would be no necessity of
resorting to chancery, to repeal it by a scire facias at the
suit of the king; this is always issued on the application of a
party, by petition, setting forth the injury he sustains by the
grant.

															It only remains to apply the foregoing principles to the case of
an ancient ferry in a ville , as a test of the rights of the
owner by the common law. Such a ferry is by prescription; the
franchise is founded on the property in the landings, it can rest
on no other right; the right of property is in the lord of the fee,
and the franchise is in him as a toll traverse , to the
extent of the local custom or prescription, but no further, even in
the king's manors, or in favor of his fee-farm tenants. The
position in the Year Book, 22 Hen. VI., goes no further; no writer
of authority has asserted that the owner of such a ferry has any
right beyond the ville or manor, which is the line and
boundary of the right of soil, and no adjudged case has sanctioned
such doctrine. There is no case or principle in the common law,
which gives any color for the assertion, that the franchise of an
ancient ferry is more protected against injurious and contiguous
competition, than the higher franchise of a port; the doctrine of
Lord HALE, and the cases in Hardr. 163, &c., are to the point,
that contiguous competition, by the diminution of the profits of an
ancient ferry, is a damnum absque injuria . Nor in the whole
body of the law, is there expressed a doubt, that the king may
grant a concurrent franchise of any description, which does not
extend within the limits of an existing one. Let these principles
be applied to the present case.

															Charles river is an arm of the sea, the colony owned a ferry
over it, together with the landing places, till 1640, and held
possession of it by their tenants; the soil of the adjacent shores
of the river was owned by the colony, or its grantees; the rights
of riparian owners extended to low watermark, or one hundred rods
on the flats, on each side. All pretence, therefore, of any right
in the college, by prescription, or the presumption of any ancient
grant which had been lost, is wholly out of the question; the grant
made in 1640, 'is a grant made at this day;' it is pleadable, it is
produced from the record, and the court can notice it ex
officio .

															It is the grant of a ferry on a public highway; the franchise is
of a toll thorough , the very nature whereof precludes any
extension of it by implication or construction, beyond its precise
limits, and the very spots at which the consideration for the grant
exists; any exaction of toll at any other points, is the usurpation
of a franchise, which, so far from giving a right, subjects the
grantee to a fine.

															Taking the common law to have been, from its first settlement,
the law of Massachusetts, its oldest and best settled rules are, in
my mind, conclusive against the pretensions of the plaintiffs in
virtue of the ferry grant. That they ought to be applied in their
utmost strictness, against any construction of colonial grants
which tend to create monopolies by implication, is, I think, the
policy and spirit of all our institutions, and called for by every
consideration of public interest. The proposition that a grant
within legal memory, of toll thorough, on an arm of the sea, over a
public highway, of a ferry which had been occupied by the public at
defined and described landings, would make it unlawful for the king
to grant a concurrent ferry at other landings, would shock the
sense of the profession in England, as subversive of the law. Such
a proposition, as to the grant of such a franchise in these states,
would be still more monstrous; because, if sustained, it would not
only subvert its common and statute law, but, by infusing such a
grant into the constitution, all legislative discretion would be
annihilated for ever, and a monopoly created by implication and
mere construction, which no power in the state or federal
government could limit.

															I have confined my opinion in this case to the grant of the
ferry by the colony, thinking it important that the principles
which apply to such grants, should be more fully explained than
they had been. As the grants to the plaintiffs by the acts of the
legislature, in 1785 and 1792, I can have nothing to add; the view
taken by the court, in their opinion, is, to my mind, most lucid
and conclusive; supported alike by argument and authority, it has
my unqualified concurrence in all the results which are
declared.

															This cause was argued at a former term of this court, and having
been then held under advisement by the court for a year, was, upon
a difference of opinion among the judges, ordered to be again
argued: and has accordingly been argued at the present term. The
arguments of the former term were conducted with great learning,
research and ability; and have been renewed, with equal learning,
reserch and ability, at the present term. But the grounds have
been, in some respects, varied; and new grounds have been assumed,
which require a distinct consideration. I have examined the case
with the most anxious care and deliberation, and with all the
lights which the researches of the year, intervening between the
first and last argument, have enabled me to obtain; and I am free
to confess, that the opinion which I originally formed, after the
first argument, is that which now has my most firm and unhesitating
conviction. The argument at the present term, so far from shaking
my confidence in it, has at every step served to confirm it. In now
delivering the results of that opinion, I shall be compelled to
notice the principal arguments urged the other way; and as the
topics discussed and the objections raised have assumed various
forms; some of which require distinct, and others, the same
answers; it will be unavoidable, that some repetitions should occur
in the progress of my own reasoning. My great respect for the
counsel who have pressed them, and the importance of the cause,
will, I trust, be thought a sufficient apology for the course which
I have, with great reluctance, thought it necessary to pursue.

															Some of the questions involved in the case are of local law. And
here, according to the known principles of this court, we are bound
to act upon that law, however different from, or opposite to, the
jurisprudence of other states, it either is, or may be supposed to
be. Other questions seem to belong exclusively to the jurisdiction
of the state tribunals, as they turn upon a conflict, real or
supposed, between the state constitution and the state laws. The
only question, over which this court possesses jurisdiction in this
case (it being an appeal from a state court and not from the
circuit court) is, as has been stated at the bar, whether the
obligation of any contract, within the true intent and meaning of
the constitution of the United States, has been violated, as set
forth in the bill. All the other points argued, are before us only
as they preliminaries and incidents to this.

															A question has, however, been made as to the jurisdiction of
this court to entertain the present writ of error. It has been
argued, that this bridge has now become a free bridge, and is the
property of the state of Massachusetts; that the state cannot be
made a party defendant to any suit to try its title to the bridge;
and that there is no difference between a suit against the state
directly, and against the state indirectly, through its servants
and agents. And in further illustration of this argument, it is
said, that no tolls can be claimed in this case, under the notion
of an implied trust; for the state court has no jurisdiction in
equity over implied trusts, but only over express trusts; and if
this court has no jurisdiction over the principal subject-matter of
the suit, the title to the bridge, it can have none over the tolls,
which are but incidents. My answer to this objection will be brief.
In the first place, this is a writ of error from a state court,
under the 25th section of the judiciary act of 1789, ch. 20; and in
such a case, if there is drawn in question the construction of any
clause of the constitution of the United States, and the decision
of the state court is against the right or title set up under it,
this court has a right to entertain the suit, and decide the
question, whoever may be the parties to the original suit, whether
private persons, or the state itself. This was decided in the case
of Cohens v. State of Virginia , 6 Wheat. 264. In the
next place, the state of Massachusetts is not a party on the record
in this suit, and therefore, the constitutional prohibition of
commencing any suit against a state, does not apply; for that
clause of the constitution is strictly confined to the parties on
the record. So it was held in Osborn v. Bank of the
United States , 9 Wheat. 738; and in the Commonwealth Bank of
Kentucky v. Wister , 2 Pet. 319, 323. In the next place,
it is no objection to the jurisdiction, even of the circuit courts
of the United States, that the defendant is a servant or agent of
the state, and the act complained of is done under its authority,
if it be tortious and unconstitutional. So it was held in the cases
last cited. In the next place, this court, as an appellate court,
has nothing to do with ascertaining the nature or extent of the
jurisdiction of the state court over any persons, or parties, or
subject-matters, given by the state laws, or as to the mode of
exercising the same; except so far as respects the very question
arising under the 25th section of the act of 1789, ch. 20.

															There are but few facts in this case which admit of any
controversy. The legislature of Massachusetts, by an act passed on
the 9th of March 1785, incorporated certain persons, by the name of
the Proprietors of the Charles

															River Bridge, for the purpose of building a bridge over Charles
river, between Boston and Charlestown; and granted to them the
exclusive toll thereof, for forty years from the time of the first
opening of the bridge for passengers. The bridge was built and
opened for passengers, in June 1786. In March 1792, another
corporation was created by the legislature, for the purpose of
building a bridge over Charles river, from the westerly part of
Boston to Cambridge; and on that occasion, the legislature, taking
into consideration the probable diminution of the profits of the
Charles River bridge, extended the grant of the proprietors of the
latter bridge to seventy years from the first opening of it for
passengers. The proprietors have, under these grants, ever since
continued to possess and enjoy the emoluments arising from the
tolls taken for travel over the bridge; and it has proved a very
profitable concern.

															In March 1828, the legislature created a corporation, called the
Proprietors of the Warren Bridge, for the purpose of erecting
another bridge across Charles river, between Boston and
Charlestown. The termini of the last bridge (which has been
since erected, and was, at the commencement of this suit, in the
full receipt of toll, and is now a free bridge) are so very near to
that of Charles River bridge, that for all practical purposes, they
may be taken to be identical. The same travel is accommodated by
each bridge, and necessarily approaches to a point, before it
reaches either, which is nearly equidistant from each. In short, it
is impossible, in a practical view, and so was admitted as the
argument, to distinguish this case from one where the bridges are
contiguous from the beginning to the end.

															The present bill is filled by the proprietors of Charles River
bridge, against the proprietors of Warren bridge, for an injunction
and other relief; founded upon the allegation, that the erection of
the Warren bridge, under the circumstances, is a violation of their
chartered rights, and so is void by the constitution of
Massachusetts, and by the constitution of the United States. The
judges of the supreme judicial court of Massachusetts, were (as is
well known) equally divided in opinion upon the main points in the
cause; and therefore, a pro formd decree was entered, with a
view to bring before this court the great and grave question,
whether the legislature of Massachusetts, in the grant of the
charter of the Warren bridge, has violated the obligation of the
constitution of the United States? If the legislature has done so,
by mistake or inadvertence, I am quite sure, that it will be the
last to insist upon maintaining its own act. It has that stake in
the Union, and in the maintenance of the constitutional rights of
its own citizens, which will, I trust, ever be found paramount to
all local interests, feelings and prejudices; to the pride of
power, and to the pride of opinion.

															In order to come to any just conclusion in regard to the only
question which this court, sitting as an appellate court, has a
right to entertain upon a writ of error to a state court, it will
be necessary to ascertain what are the rights conferred on the
proprietors of Charles River bridge by the act of incorporation.
The act is certainly not drawn with any commendable accuracy. But
it is difficult, upon any principles of common reasoning, to
mistake its real purport and object. It is entitled, 'an act for
incorporating certain persons, for the purpose of building a bridge
over Charles river, between Boston and Charlestown, and supporting
the same during the term of forty years.' Yet, it nowhere, in
terms, in any of the enacting clauses, confers any authority upon
the corporation, thus created, to build any such bridge; nor does
it state in what particular place the bridge shall commence or
terminate on either side of the river, except by inference and
implication from the preamble. I mention this, at the threshold of
the present inquiry, as an irresistible proof that the court must,
in the construction of this very act of incorporation, resort to
the common principles of interpretation; and imply and presume
things, which the legislature has not expressly declared. If the
court were not at liberty so to do, there would be an end of the
cause.

															The act begins, by reciting, that 'the erecting of a bridge over
Charles river, in a place where the ferry between Boston and
Charlestown is now kept, will be of great public utility, and
Thomas Russell and others having petitioned, &c., for the act
of incorporation, to empower them to build said bridge, and many
other persons, under the expectation of such an act, have
subscribed to a fund for executing and completing the aforesaid
purpose.' It then proceeds to enact, that the proprietors of the
fund or stock shall be a corporation under the name of the
Proprietors of Charles River Bridge; and it gives them the usual
powers of corporations, such as the power to sue and be sued,
&c. In the next section, it provides for the organization of
the corporation; for choosing officers; for establishing rules and
regulations for the corporation; and for effecting, completing and
executing the purpose aforesaid. In the next section, 'for the
purpose of reimbursing the said proprietors the money expended in
building and supporting the said bridge,' it provides, that a toll
be, and thereby is granted and established, for the sole benefit of
the proprietors, for forty years from the opening of the bridge for
travel, according to certain specified rates. In the next section,
it provides, that the bridge shall be well built, at least forty
feet wide, of sound and suitable materials, with a convenient draw
or passage-way for ships and vessels, &c.; and 'that the same
shall be kept in good, safe and passable repair for the term
aforesaid, and at the end of the said term, the said bridge shall
be left in like repair.' Certain other provisions are also made, as
to lighting the bridge, erecting a toll-board, lifting the draw for
all ships and vessels, without toll or pay,' &c. The next
section declares, that after the tolls shall commence, the
proprietors 'shall annually pay to Harvard College or university,
the sum of two hundred pounds, during the said term of forty years;
and at the end of the said term, the said bridge shall revert to,
and be the property of the commonwealth, saving to the said college
or university, a reasonable and annual compensation for the annual
income of the ferry, which they might have received, had not such
bridge been erected.' The next and last section of the act declares
the act void, unless the bridge should be built within three years
from the passing of the act.

															Such is the substance of the charter of incorporation, which the
court is called upon to construe. But, before we can properly enter
upon the consideration of this subject, a preliminary inquiry is
presented, as to the proper rules of interpretation applicable to
the charter. Is the charter to receive a strict or a liberal
construction? Are any implications to be made, beyond the express
terms? And if so, to what extent are they justifiable, by the
principles of law? No one doubts, that the charter is a contract
and a grant; and that it is to receive such a construction as
belong to contracts and grants, as contradistinguished from mere
laws. But the argument has been pressed here, with unwonted
earnestness (and it seems to have had an irresistible influence
elsewhere); that this charter is to be construed as a royal grant,
and that such grants are always construed with a stern and
parsimonious strictness. Indeed, it seems tacitly conceded, that
unless such a strict construction is to prevail (and it is insisted
on as the positive dictate of the common law), there is infinite
danger to the defence assumed on behalf of the Warren bridge
proprietors. Under such circumstances, I feel myself constrained to
go at large into the doctrine of the common law, in respect to
royal grants, because I cannot help thinking, that, upon this
point, very great errors of opinion have crept into the argument. A
single insulated position seems to have been taken as a general
axiom. In my own view of the case, I should not have attached so
much importance to the inquiry; but it is now fit that it should be
sifted to the bottom.

															It is a well-known rule in the construction of private grants,
if the meaning of the words be doubtful, to construe them most
strongly against the grantor. But it is said, that an opposite rule
prevails in cases of grants by the king; for, where there is any
doubt, the construction is made most favorably for the king, and
against the grantee. The rule is not disputed; but it is a rule of
very limited application. To what cases does it apply? To such
cases only, where there is a real doubt, where the grant admits of
two interpretations, one of which is more extensive, and the other
more restricted; so that a choice is fairly open, and either may be
adopted, without any violation of the apparent objects of the
grant. If the king's grant admits of two interpretations, one of
which will make it utterly void and worthless, and the other will
give it a reasonable effect, then the latter is to prevail; for the
reason (says the common law), 'that it will be more for the benefit
of the subject, and the honor of the king, which is to be more
regarded than his profit.' Com. Dig. Grant, G. 12; 9 Co. 131 a; 10 Ibid. 67 b ; 6 Ibid. 6. And in every case, the
rule is made to bend to the real justice and integrity of the case.
No strained or extravagant construction is to be made in favor of
the king. And if the intention of the grant is obvious, a fair and
liberal interpretation of its terms is enforced. The rule itself is
also expressly dispensed with, in all cases where the grant
appears, upon its face, to flow, not from the solicitation of the
subject, but from the special grace, certain knowledge, and mere
motion of the crown; or, as it stands in the old royal patents, ex speciali gratia, certa scientia, et ex mero motu regis' (See Arthur Legat's Case , 10 Co. 109, 112 b; Sir John
Moulin's Case , 6 Ibid. 6; 2 Bl. Com. 347; Com. Dig. Grant, G.
12); and these words are accordingly inserted in most of the modern
grants of the crown, in order to exclude any narrow construction of
them. So the court admitted the doctrine to be in Attorney-General v. Lord Eardly , 8 Price 39. But what
is a most important qualification of the rule, it never did apply
to grants made for a valuable consideration by the crown; for in
such grants, the same rule has always prevailed, as in cases
between subjects. The mere grant of a bounty of the king may
properly be restricted to its obvious intent. But the contracts of
the king for value are liberally expounded, that the dignity and
justice of the government may never be jeoparded, by petty evasions
and technical subtleties.

															I shall not go over all the cases in the books, which recognise
these principles, although they are abundant. Many of them will be
found collected in Bacon's Abridgment, Prerogative, F. 2, p. 602-4;
in Comyn's Digest, Grant, G. 12; and in Chitty on the Prerogatives
of the Crown, ch. 16, § 3. But I shall dwell on some of the more
prominent, and especially on those which have been mainly relied on
by the defendants; because, in my humble judgment, they teach a
very different doctrine from what has been insisted on. Lord COKE,
in his Commentary on the Statute of Quo Warranto, 18 Edw. I., makes
this notable remark: 'Here is an excellent rule for construction of
the king's patent, not only of liberties, but of lands, tenements
and other things, which he may lawfully grant, that they have no
strict or narrow interpretation, for the overthrowing of them, sed secundum eundum plenitudinem judicentur; that is, to
have a liberal and favorable construction, for the making them
available in law, usque ad plenitudinem , for the honor of
the king.' Surely, no lawyer would contend for a more beneficent or
more broad exposition of any grant whatsoever, than this.

															So, in respect to implications, in cases of royal grants, there
is not the slightest difficulty, either upon authority or
principle, in giving them a large effect, so as to include things
which are capable of being the subject of a distinct grant. A very
remarkable instance of this sort arose under the Statute of
Prerogative (17 Edw. II., Stat. 2, c. 15), which declared, that
when the king granteth to any, a manor or land, with the
appurtenances, unless he makes express mention in the deed, in
writing, of advowsons, &c., belonging to such manor, then the
king reserveth to himself such advowsons. Here, the statute itself
prescribed a strict rule of interpretation.(a) Yet, in Whistler's Case , 10 Co. 63, it was held, that a royal grant
of a manor, with the appurtenances, in as ample a manner as it came
to the king's hands, conveyed an advowson, which was appendant to
the manor, by implication from the words actually used, and the
apparent intent. This was certainly a very strong case of raising
an implication from words susceptible of different interpretations,
where the statute had furnished a positive rule for a narrow
construction, excluding the advowson. So it has been decided, that
if the king grants a messuage and all lands spectantes, aut cum
eo dismissas , lands which have been enjoyed with it for a
convenient time, pass. 2 Roll. Abr. 186, C. 25, 30; Cro. Car. 169;
Chitty on the Prerogatives, ch. 16, § 3, p. 393; Com. Dig. Grant,
G. 5. In short, wherever the intent from the words is clear, or
possesses a reasonable certainty, the same construction prevails in
crown grants, as in private grants; especially, where the grant is
presumed to be from the voluntary bounty of the crown, and not from
the representation of the subject.

															It has been supposed, in the argument, that there is a
distinction between grants of lands held by the king, and grants of
franchises which are matters of prerogative, and held by the crown
for the benefit of the public, as flowers of prerogative. I know of
no such distinction; and Lord COKE, in the passage already cited,
expressly excludes it; for he insists, that the same liberal rule
of interpretation is to be applied to cases of grants of liberties,
as to cases of grants of lands.

															I am aware, that Mr. Justice BLACKSTONE, in his Commentaries (2
Bl. Com. 347), has laid down some rules apparently varying from
what has been stated. He says, 'the manner of granting by the king
does not more differ from that by a subject, than the construction
of his grants when made. 1. A grant made by the king, at the suit
of the grantee, shall be taken most beneficially for the king and
against the party; whereas, the grant of a subject is construed
most strongly against the grantor, &c. 2. A subject's grant
shall be construed to include many things besides what are
expressed, if necessary for the operation of the grant; therefore,
in a private grant of the profits of land for one year, free
ingress, egress and regress, to cut and carry away those profits,
are also inclusively granted, &c. But the king's grant shall
not inure to any other intent, than that which is precisely
expressed in the grant. As, if he grants land to an alien, it
operates nothing; for such a grant shall not inure to make him a
denizen, that so he may be capable to take by the grant.' Now, in
relation to the last position, there is nothing strange or
unnatural in holding, that a crown grant shall not inure to a
totally different purpose from that which is expressed, or to a
double intent; when all its terms are satisfied by a single intent.
It is one thing to grant land to an alien, and quite a different
thing to make him a denizen. The one is not an incident to the
other, nor does it naturally flow from it. The king may be willing
to grant land to an alien, when he may not be willing to give him
all the privileges of a subject. It is well known, that an alien
may take land by grant, and may hold it against every person but
the king, and it does not go to the latter, until office found; so
that, in the meantime, an alienation by the alien will be good. A
grant, therefore, to an alien, is not utterly void; it takes
effect, though it is not indefeasible. And in this respect, there
does not seem any difference between a grant by a private person,
and by the crown; for the grant of the latter takes effect, though
it is liable to be defeated. See Com. Dig. Alien, C. 4; 1 Leon. 47;
4 Ibid. 82. The question in such cases is not, whether there may
not be implications in a crown grant; but whether a totally
different effect shall be given to a crown grant from what its
terms purport. The same principle was acted upon in Englefield's
Case , 7 Co. 14 a . There, the crown had demised certain
lands, which were forfeited by a tenant for life, by attainder, to
certain persons, for forty years; and the crown being entitled to a
condition which would defeat the remainder over, after the death of
the person attainted, tendered performance of the condition to the
remainder-man, who was a stranger to the demise; and he contended,
that by the demise, the condition was suspended. And it was held,
that the demise should not operate to a double intent, viz., to
pass the term, and also, in favor of a stranger, to suspend the
condition; for (it was said) 'the grant of the crown shall be taken
according to the express intention comprehended in the grant, and
shall not extend to any other thing, by construction or
implication, which doth not appear by the grant, that the intent
did extend to;' though it might have been different, in the case of
a subject.

															In regard to the other position of Mr. Justice BLACKSTONE, it
may be supposed, that he means to assert, that in a crown grant of
the profits of land for a year, free ingress, egress and regress to
take the profits, are not included by implication, as they would be
in a subject's grant. If such be his meaning, he is certainly under
a mistake. The same construction would be put upon each; for
otherwise nothing would pass by the grant. It is a principle of
common sense, as well as of law, that when a thing is granted,
whatever is necessary to its enjoyment, is granted also. It is not
presumed, that the king means to make a void grant; and therefore,
if it admits of two constructions, that shall be followed which
will secure its validity and operation. In Comyn's Digest (Com.
Dig. Grant, E. 11, Co. Litt. 56 a ), a case is cited from the
Year Book, 1 Hen. IV. 5 (it should be 6 a ), that if there be
a grant of land, cum pertinentiis , to which common is
appendant, the common passes as an incident, even though it be the
grant of the king. So, it is said, in the same case, if the king
grant to me the foundation of an abbey, the corody passes. So, if
the king grant to me a fair, I shall have a court of piepoudre, as
incident thereto. And there are other cases in the books, to the
same effect. See Bac. Abr. Prerogative, F. 2, p. 602; Comyn's Dig.
Grant, G. 12; Lord Chandos's Case , 6 Co. 55; Sir Robert
Atkyn's Case , 1 Vent. 399, 409; 9 Co. 29-30. Finch, in his
Treatise on the Law, contains nothing beyond the common
authorities. Finch's Law, b. 2, ch. 2, p. 24 (ed. 1613); Cro. Eliz.
591, per POPHAM, Ch. J.; 17 Vin. Abr. Prerogative, O, c, pl.
13; Com. Dig. Franchise, C.; 2 Inst. 282.

															Lord COKE, after stating the decision of Sir John Moulin's
Case , 6 Co. 6, adds these words: 'Note the gravity of the
ancient sages of the law, to construe the king's grants
beneficially for his honor, and not to make any strict or literal
construction in subversion of such grants.' This is an admonition,
in my humble judgment, very fit to be remembered and acted upon by
all judges, who are called upon to interpose between the government
and the citizen, in cases of public grants. Legat's Case , 10
Co. 109, contains nothing, that in the slightest degree impugns the
general doctrine here contended for. It proceeded upon a plain
interpretation of the very words of the grant; and no implications
were necessary or proper, to give it its full effect.

															The case of the Royal Fishery of the Banne , decided in
Ireland, in the privy council, in 8 James I. (Davies 149), has been
much relied on to establish the point, that the king's grant shall
pass nothing by implication. That case, upon its actual
circumstances, justifies no such sweeping conclusion. The king was
owner of a royal fishery in gross (which is material), on the river
Banne, in navigable waters, where the tide ebbed and flowed, about
two leagues from the sea; and he granted to Sir R. McD. the
territory of Rout, which is parcel of the county of Antrim, and
adjoining to the river Banne, in that part where the said fishery
is; the grant containing the following words, ' omnia castra,
messuagia, &c., piscarias, piscationes, aquas, aquarum cursus,
&c., ac omnia alia hereditamenta in vel infra dictum
territorium de Rout, in comitatu Antrim, exceptis, et ex hac
concessione nobis heredibus et successoribus nostris reservatis
tribus partibus piscationibus fluminis de Banne .' The question
was, whether the grant passed the royal fishery in the Banne to the
grantee? And it was held, that it did not; first, because the river
Banne, so far as the sea ebbs and flows, is a royal navigable
river, and the fishery there, a royal fishery; secondly, because no
part of this royal fishery could pass by the grant of the land
adjoining, and by the general grant of all the fisheries (in or
within the territory of Rout), for this royal fishery is not
appurtenant to the land, but is a fishery in gross, and parcel of
the inheritance of the crown itself; and general words in the
king's grant shall not pass such special royalty, which belongs to
the crown by prerogative; thirdly, that by the exception in the
grant of three parts of this fishery, the other fourth part of this
fishery did not pass by this grant; for the king's grant shall pass
nothing by implication; and for this was cited 2 Hen. VII. 13. Now,
there is nothing in this case, which not easily explicable upon the
common principles of interpretation. The fishery was a royal
fishery in gross, and not appurtenant to the territory of Rout. Ward v. Cresswell , Willes 265. The terms of the grant
were of all fisheries in and within this territory; and this
excluded any fishery not within it, or not appurtenant to it. The
premises, then, clearly did not, upon any just construction, convey
the fishery in question, for it was not within the territory. The
only remaining question was, whether the exception of
three-quarters, would, by implication, carry the fourth part which
was not excepted; that is, whether terms of exception in a crown
grant should be construed to be terms of grant, and not of
exception. It is certainly no harsh application of the common rules
of interpretation, to hold that an implication which required such
a change in the natural meaning of the words, ought not to be
allowed, to the prejudice of the crown. Non constat , that
the king might not have supposed, at the time of the grant, that he
was owner of three parts only of the fishery, and not of the fourth
part. This case of the Fishery of the Banne was cited and
commented on by Mr. Justice BAYLEY, in delivering the opinion of
the court, in the case of the Duke of Somerset v. Fogwell , 5 Barn. & Cres. 875, 885, and the same view was
taken of the grounds of the decision, which has been here stated;
the learned judge adding, that it was further agreed in that case,
that the grant of the king passes nothing by implication; by which
he must be understood to mean, nothing, which its terms do not,
fairly and reasonably construed, embrace as a portion of or
incident to the subject matter of the grant.

															As to the case cited from 2 Hen. VII. 13 (which was the sole
authority relied on), it turned upon a very different principle.
There, the king, by letters-patent, granted to a man that he might
give twenty marks annual rent to a certain chaplain to pray for
souls, &c.; and the question was, whether the grant was not
void for uncertainty, as no chaplain was named. And the principal
stress of the argument seems to have been, whether this license
should be construed to create or enable the grantee to create a
corporation capable of taking the rent. In the argument, it was
asserted, that the king's grants should not be construed, by
implication, to create a corporation, or to inure to a double
intent. In point of fact, however, I find (Chronica Juridicialia,
p. 141), that neither of the persons, whose opinions are stated in
the case, was a judge at the time of the argument, nor does it
appear what the decision was; so that the whole report is but the
argument of counsel. The same case is fully reported by Lord COKE,
in the case of Sutton's Hospital , 10 Co. 27-8, who says,
that he had seen the original record, and who gives the opinions of
the judges at large, by which it appears that the grant was held
valid. And so, says Lord COKE, 'Note, reader, this grant of the
king inures to these intents, viz., to make an incorporation; to
make a succession; and to grant a rent.' So, that here we have a
case, not only of a royal grant being construed liberally, but
divers implications being made, not at all founded in the express
terms of the grant. The reason of which was (as Lord COKE says),
because the kings's charter made for the erection of pious and
charitable works, shall be always taken in the most favorable and
beneficial sense. This case was recognised by the judges as sound
law, in the case of Sutton's Hospital . And it was clearly
admitted by the judges, that in a charter of incorporation by the
crown, all the incidents to a corporation were tacitly annexed,
although not named; as the right to sue and be sued; to purchase,
hold and alien lands; to make by-laws, &c. And if power is
expressly given to purchase, but no clause to alien, the letter
follows by implication, as an incident. Comyn's Dig. Franchise, F,
6, F, 10, F, 15. It is very difficult to affirm, in the teeth of
such authorities, that in the king's grants nothing is to be taken
by implication; as is gravely asserted in the case in Davies 149.
The case cited to support it, is directly against it. In truth, it
is obvious, that the learned judges mistook the mere arguments of
counsel, for the solemn opinions of the court; and the case, as
decided, is a direct authority the other way.

															The case of Blankley v. Winstanley , 3 T. R. 279,
has also been relied on for the same purpose; but it has nothing to
do with the point. The court there held, that by the saving in the
very body of the charter, the concurrent jurisdiction of the county
magistrates was preserved. There was nothing said by the court, in
respect to the implications in crown grants. The whole argument
turned upon the meaning of the express clauses.

															Much reliance has also been placed upon the language of Lord
STOWELL, in The Elsebe , 5 Rob. 173. The main question in
that case was, whether the crown had a right to release captured
property, before adjudication, without the consent of the captors.
That question depended upon the effect of the king's orders in
council, his proclamation, and the parliamentary prize act; for,
independently of these acts, it was clear, that all captured
property, jure belli , belonged to the crown; and was subject
to its sole disposal. Lord STOWELL, whose eminent qualifications as
a judge entitle him to great reverence, on that occasion said: 'A
general presumption arising from these considerations is, that
government does not mean to divest itself of this universal
attribute of sovereignty conferred for such purposes (to be used
for peace, as well as war), unless it is so clearly and
unequivocally expressed. In conjunction with this universal
presumption, must be taken also the wise policy of our own peculiar
law, which interprets the grants of the crown in this respect, by
other rules than those which are applicable in the construction of
the grants of individuals. Against an individual, it is presumed,
that he meant to convey a benefit, with the utmost liberality that
his words will bear. It is indifferent to the public, in which
person an interest remains, whether in the grantor or the taker.
With regard to the grant of the sovereign, it is far otherwise. It
is not held by the sovereign himself, as private property, and no
alienation shall be presumed, except what is clearly and
indisputably expressed.' Now, the right of the captors in that
case, was given by the words of the king's order in council only.
It was a right to seize and bring in for adjudication. The right to seize, then, was given, and the duty to
bring in for adjudication was imposed. If nothing more had existed,
it would be clear, that the crown would have the general property
in the captures. Then, again, the prize act and prize proclamation
gave to the captors a right in the property, after adjudication, as
lawful prize, and not before. This very limitation naturally
implied, that until adjudication, they had no right in the
property. And this is the ground, upon which Lord STOWELL placed
his judgment, as the clear rusult of a reasonable interpretation of
these acts; declining to rely on any reasoning from considerations
of public policy. And it is to be considered, that Lord STOWELL was
not speaking of an ordinary grant of land, or of franchises, in the
common course of mere municipal regulations; but of sovereign
attributes and prerogatives, involving the great rights and duties
of war and peace, where, upon every motive of public policy, and
every ground of rational interpretation, there might be great
hesitation in extending the terms of a grant beyond their fair
interpretation.

															But what, I repeat, is most material to be stated, is, that all
this doctrine in relation to the king's prerogative of having a
construction in his own favor, is exclusively confined to cases of
mere donation , flowing from the bounty of the crown.
Whenever the grant is upon a valuable consideration, the rule of
construction ceases; and the grant is expounded exactly as it would
be in the case of a private grant-favorably to the grantee. Why is
this rule adopted? Plainly, because the grant is a contract, and is
to be interpreted according to its fair meaning. It would be to the
dishonor of the government, that it should pocket a fair
consideration, and then quibble as to the obscurities and
implications of its own contract. Such was the doctrine of my Lord
COKE, and of the venerable sages of the law, in other times, when a
resistance to prerogative was equivalent to a removal from office.
Even in the worst ages of arbitrary power, and irresistible
prerogative, they did not hesitate to declare, that contracts
founded in a valuable consideration ought to be construed liberally
for the subject, for the honor of the crown. 2 Inst. 496. See also
Com. Dig. Franchise, C. F. 6. If we are to have the grants of the
legislature construed by the rules applicable to royal grants, it
is but common justice, to follow them throughout, for the honor of
this republic. The justice of the commonwealth will not, I trust,
be deemed less extensive than that of the crown.

															I think, that I have demonstrated, upon authority, that it is by
no means true, that implications may not, and ought not, to be
admitted, in regard to crown grants. And I would conclude what I
have to say on this head, by a remark made by the late Mr. Chief
Justice PARSONS, a lawyer equally remarkable for his extraordinary
genius, and his professional learning. 'In England, prerogative is
the cause of one against the whole; here, it is the cause of all
against one. In the first case, the feelings and vices, as well as
the virtues, are enlisted against it; in the last, in favor of it.
And therefore, here , it is of more importance, that the
judicial courts should take care that the claim of prerogative
should be more strictly watched.' Martin v. Commonwealth , 1 Mass. 356.

															If, then, the present were the case of a royal grant, I should
most strenuously contend, both upon principle and authority, that
it was to receive a liberal, and not a strict construction. I
should so contend, upon the plain intent of the charter, from its
nature and objects, and from its burdens and duties. It is,
confessedly, a case of contract, and not of bounty; a case of
contract for a valuable consideration; for objects of public
utility; to encourage enterprise; to advance the public
convenience; and to secure a just remuneration for large outlays of
private capital. What is there in such a grant of the crown, which
should demand from any court of justice a narrow and strict
interpretation of its terms? Where is the authority with contains
such a doctrine, or justifies such a conclusion? Let it not be
assumed, and then reasoned from, as an undisputed concession. If
the common law carries in its bosom such a principle, it can be
shown by some authorities, which ought to bind the judgment, even
if they do not convince the understanding. In all my researches, I
have not been able to find any, whose reach does not fall far, very
far, short of establishing any such doctrine. Prerogative has never
been wanting in pushing forward its own claims for indulgence or
exemption. But it has never yet (so far as I know) pushed them to
this extravagance.

															I stand upon the old law; upon law established more than three
centuries ago, in cases contested with as much ability and
learning, as any in the annals of our jurisprudence, in resisting
any such encroachments upon the rights and liberties of the
citizens, secured by public grants. I will not consent to shake
their title deeds, by any speculative niceties or novelties.

															The present, however, is not the case of a royal grant, but of a
legislative grant, by a public statute. The rules of the common law
in relation to royal grants have, therefore, in reality, nothing to
do with the case. We are to give this act of incorporation a
rational and fair construction, according to the general rules
which govern in all cases of the exposition of public statutes. We
are to ascertain the legislative intent; and that once ascertained,
it is our duty to give it a full and liberal operation. The books
are full of cases to this effect (see Com. Dig. Parliament, R. 10
to R. 28; Bac. Abr. Statute), if indeed, so plain a principle of
common sense and common justice stood in any need of authority to
support it.

															Lord Chief Justice EYRE, in the case of Boulton v. Bull , 2 H. Bl. 463, 500, took notice of the distinction
between the construction of a crown grant, and a grant by an act of
parliament; and held the rules of the common law, introduced for
the protection of the crown, in respect to its own grants, to be
inapplicable to a grant by an act of parliament. 'It is to be
observed (said his lordship), that there is nothing technical in
the composition of an act of parliament. In the exposition of
statutes, the intent of parliament is the guide. It is expressly
laid down in our books (I do not here speak of penal statutes),
that every statute ought to be expounded, not according to the
letter, but the intent.' Again, he said, 'this case was compared to
the case of the king being deceived in his grants; but I am not
satisfied, that the king, proceeding by and with the advice of
parliament, is in that situation, in respect to which he is under
the special protection of the law; and that he could, on that
ground, be considered as deceived in his grant; no case was cited
to prove that position.' Now, it is to be remembered, that his
lordship was speaking upon the construction of an act of parliament
of a private nature; an act of parliament in the nature of a
monopoly; an act of parliament granting an exclusive patent for an
invention to the celebrated Mr. Watt. And let it be added, that his
opinion as to the validity of that grant, notwithstanding all the
obscurities of the act, was ultimately sustained in the king's
bench by a definitive judgment in its favor. See Hornblower v. Boulton , 8 T. R. 95.

															A doctrine equally just and liberal has been repeatedly
recognised by the supreme court of Massachusetts. In the case of Richards v. Daggett , 4 Mass. 534, 537, Mr. Chief
Justice PARSONS, in delivering the opinion of the court, said: 'It
is always to be presumed, that the legislature intend the most
beneficial construction of their acts, when the design of them is
not apparent.' See also, Inhabitants of Somerset v. Inhabitants of Dighton , 12 Mass. 383; Whitney v. Whitney , 14 Ibid. 88; 8 Ibid. 523; Holbrook v. Holbrook , 1 Pick. 248; Stanwood v. Peirce , 7
Mass 458. Even in relation to mere private statutes, made for the
accommodation of particular citizens, and which may affect the
rights and privileges of others; courts of law will give them a
large construction, if it arise from necessary implication. Coolidge v. Williams , 4 Mass. 145.

															As to the manner of construing parliamentary grants for private
enterprise, there are some recent decisions, which, in my judgment,
establish two very important principles, applicable directly to the
present case; which, if not confirmatory of the views which I have
endeavored to maintain, are at least not repugnant to them. The
first is, that all grants for purposes of this sort are to be
construed as contracts between the government and the grantees, and
not as mere laws; the second is, that they are to receive a
reasonable construction; and that if, either upon their express
terms, or by just inference from the terms, the intent of the
contract can be made out, it is to be recognised and enforced
accordingly. But if the language be ambiguous, or if the inference
be not clearly made out, then the contract is to be taken most
strongly against the grantor, and most favorably for the public.
The first case is the Company of Proprietors of the Leeds and
Liverpool Canal v. Hustler , 1 Barn. & Cres. 424,
where the question was upon the terms of the charter, granting a
toll. The toll was payable on empty boats, passing a lock of the
canal. The court said 'no toll was expressly imposed upon empty
boats, &c., and we are called upon to say, that such a toll was
imposed by inference. Those who seek to impose a burden upon the
public, should take care that their claim rests upon plain and
unambiguous language; here the claim is by no means clear.' The
next case was the Kingston-upon-Hull Dock Company v. La
Marche , 8 Barn. & Cres. 42, where the question was, as to
right to wharfare of goods shipped off from their quays. Lord
TENTERDEN, in delivering the judgment of the court in the negative,
said: 'This was clearly a bargain made between a company of
adventurers and the public; and as, in many similar cases, the
terms of the bargain are contained in the act; and the plaintiffs
can claim nothing which is not clarly given.' The next case is the Proprietors of the Stourbridge Canal v. Wheeley , 2
Barn. & Ad. 792, in which the question was as to a right to
certain tolls. Lord TENTERDEN, in delivering the opinion of the
court, said, 'this like many other cases, is a bargain between a
company of adventurers and the public, the terms of which are
expressed in the statute. And the rule of construction in all such
cases in now fully established to be this that any ambiguity in the
terms of the contract must operate against the adventurers, and in
favor of the public; and the plaintiffs can claim nothing which is
not clearly given to them by the act.' 'Now, it is quite certain,
that the company have no right expressly given to receive any
compensation, except, &c.; and therefore, it is incumbent upon
them to show, that that they have a right, clearly given by
inference from some other of the clauses.' This latter statement
shows, that it is not indispensable, that in grants of this sort,
the contract or the terms of the bargain should be in express
language; it is sufficient, if they may be clearly proved by
implication or inference.

															I admit, that where the terms of a grant are to impose burdens
upon the public, or to create a restraint injurious to the public
interest, there is sound reason for interpreting the terms, if
ambiguous, in favor of the public. But at the same time, I insist,
that there is not the slightest reason for saying, even in such a
case, that the grant is not to be construed favorably to the
grantee, so as to secure him in the enjoyment of what is actually
granted.

															I have taken up more time in the discussion of this point, than,
perhaps, the occasion required, because of its importance, and the
zeal, and earnestness and learning, with which the argument for a
strict construction has been pressed upon the court, as in some
sort vital to the merits of this controversy. I feel the more
confirmed in my own views upon the subject, by the consideration,
that every judge of the state court, in delivering his opinion,
admitted, either directly or by inference, the very principle for
which I contend. Mr. Justice MORTON, who pressed the doctrine of a
strict construction most strongly, at the same time said, 'although
no distinct thing or right will pass by implication, yet I do not
mean to question, that the words used should be understood in their
most natural and obvious sense; and that whatever is essential to
the enjoyment of the thing granted will be necessarily implied in
the grant.' 7 Pick. 462. Mr. Justice WILDE said, 'in doubtful
cases, it seems to me a sound and wholesome rule of construction to
interpret public grants most favorably to the public interests, and
that they are not to be enlarged by doubtful implications.'
'When, therefore, the legislature makes a grant of a public
franchise, it is not to be extended by construction, beyond its
clear and obvious meaning.' 'There are some legislative grants, no
doubt, that may admit of a different rule of construction; such as
grants of land on a valuable consideration, and the like.' Ibid.
469. These two learned judges were adverse to the plaintiffs'
claim. But the two other learned judges, who were in favor of it,
took a much broader and more liberal view of the rules of
interpretation of the charter.

															An attempt has, however, been made, to put the case of
legislative grants upon the same footing as royal grants, as to
their construction; upon some supposed analogy between royal grants
and legislative grants, under our republican forms of government.
Such a claim in favor of republican prerogative is new; and no
authority has been cited which supports it. Our legislatures
neither have, nor affect to have, any royal prerogatives. There is
no provision in the constitution authorizing their grants to be
construed differently from the grants of private persons, in regard
to the like subject-matter. The policy of the common law, which
gave the crown so many exclusive privileges and extraordinary
claims, different from those of the subject, was founded, in a good
measure, if not altogether, upon the divine right of kings, or, at
least, upon a sense of their exalted dignity and pre-eminence over
all subjects, and upon the notion, that they are entitled to
peculiar favor, for the protection of their kingly rights and
office. Parliamentary grants never enjoyed any such privileges;
they were always construed according to common sense and comon
reason, upon their language and their intent. What reason is there,
that our legislative acts should not receive a similar
interpretation? Is it not, at least, as important, in our free
governments, that a citizen should have as much security for his
rights and estate derived from the grants of the legislature, as he
would have in England? What solid ground is there to say, that the
words of a grant, in the mouth of a citizen, shall mean one thing,
and in the mouth of the legislature shall mean another thing? That
in regard to the grant of a citizen, every word shall, in case of
any question of interpretation or implication, be construed against
him, and in regard to the grant of the government, every word shall
be construed in its favor? That language shall be construed, not
according to its natural import and implications from its own
proper sense, and the objects of the instrument; but shall change
its meaning, as it is spoken by the whole people, or by one of
them? There may be very solid grounds to say, that neither grants
nor charters ought to be extended beyond the fair reach of their
words; and that no implications ought to be made, which are not
clearly deducible from the language, and the nature and objects of
the grant.

															In the case of a legislative grant, there is no ground to impute
surprise, imposition or mistake, to the same extent as in a mere
private grant of the crown. The words are the words of the
legislature, upon solemn deliberation, and examination and debate.
Their purport is presumed to be well known, and the public
interests are watched, and guarded by all the varieties of local,
personal and professional jealousy; as well as by the untiring zeal
of numbers, devoted to the public service.

															It should also be constantly kept in mind, that in construing
this charter, we are not construing a statute involving political
powers and sovereignty, like those involved in the case of The
Elsebe , 5 Rob. 173. We are construing a grant of the
legislature, which though in the form of a statute, is still but a
solemn contract. In such a case, the true course is, to ascertain
the sense of the parties, from the terms of the instrument; and
that once ascertained, to give it full effect. Lord COKE, indeed,
recommends this as the best rule, even in respect to royal grants.
'The best exposition' (says he) 'of the king's charter is, upon the
consideration of the whole charter, to expound the charter by the
charter itself; every material part thereof (being) explained
according to the true and genuine sense, which is the best method.' Case of Sutton's Hospital , 10 Co. 24 b .

															But with a view to induce the court to withdraw from all the
common rules of reasonable and liberal interpretation in favor of
grants, we have been told at the argument, that this very charter
is a restriction upon the legislative power; that it is in
derogation of the rights and interests of the state, and the
people; that it tends to promote monopolies and exclusive
privileges; and that it will interpose an insuperable barrier to
the progress of improvement. Now, upon every one of these
propositions, which are assumed, and not proved, I entertain a
directly opposite opinion; and if I did not, I am not prepared to
admit the conclusion for which they are adduced. If the legislature
has made a grant, which involves any or all of these consequences,
it is not for courts of justice to overturn the plain sense of the
grant, because it has been improvidently or injuriously made.

															But I deny the very ground-work of the argument. This charter is
not (as I have already said) any restriction upon the legislative
power; unless it be true, that because the legislature cannot grant
again, what it has already granted, the legislative power is
restricted. If so, then every grant of the public land is a
restriction upon that power; a doctrine, that has never yet been
established, nor (so far as I know) ever contended for. Every grant
of a franchise is, so far as that grant extends, necessarily
exclusive; and cannot be resumed or interfered with. All the
learned judges in the state court admitted, that the franchise of
Charles River bridge, whatever it be, could not be resumed or
interfered with. The legislature could not recall its grant, or
destroy it. It is a contract, whose obligation cannot be
constitutionally impaired. In this respect, it does not differ from
a grant of lands. In each case, the particular land, or the
particular franchise, is withdrawn from the legislative operation.
The identical land, or the identical franchise, cannot be
regranted, or avoided by a new grant. But the legislative power
remains unrestricted. The subject-matter only (I repeat it) has
passed from the hands of the government. If the legislature should
order a government debt to be paid by a sale of the public stock,
and it is so paid, the legislative power over the funds of the
government remains unrestricted, although it has ceased over the
particular stock, which has been thus sold. For the present, I pass
over all further consideration of this topic, as it will
necessarily come again under review, in examining an objection of a
more broad and comprehensive nature.

															Then, again, how is it established, that this is a grant in
derogation of the rights and interests of the people? No individual
citizen has any right to build a bridge over navigable waters; and
consequently, he is deprived of no right, when a grant is made to
any other persons for that purpose. Whether it promotes or injures
the particular interest of an individual citizen, constitutes no
ground for judicial or legislative interference, beyond what his
own rights justify. When, then, it is said, that such a grant is in
derogation of the rights and interests of the people, we must
understand, that reference is had to the rights and interests
common to the whole people, as such (such as the right of
navigation), or belonging to them as a political body; or, in other
words, the rights and interests of the state. Now, I cannot
understand, how any grant of a franchise is a derogation from the
rights of the people of the state, any more than a grant of public
land. The right, in each case, is gone, to the extent of the thing
granted, and so far may be said to derogate from, that is to say,
to lessen the rights of the people, or of the state. But that is
not the sense in which the argument is pressed; for, by derogation,
is here meant an injurious or mischievous detraction from the
sovereign rights of the state. On the other hand, there can be no
derogation from the rights of the people, as such, except it
applies to rights common there before; which the building of a
bridge over navigable waters certainly is not. If it had been said,
that the grant of this bridge was in derogation of the common right
of navigating the Charles river, by reason of its obstructing, pro tanto , a free and open passage, the ground would have
been intelligible. So, if it had been an exclusive grant of the
navigation of that stream. But, if at the same time, equivalent
public rights of a different nature, but of greater public
accommodation and use, had been obtained; it could hardly have been
said, in a correct sense, that there was any derogation from the
rights of the people, or the rights of the state. It would be a
mere exchange of one public right for another.

															Then, again, as to the grant being against the interests of the
people. I know not how that is established; and certainly, it is
not to be assumed. It will hardly be contended, that every grant of
the government is injurious to the interests of the people; or that
every grant of a franchise, must necessarily be so. The erection of
a bridge may be of the highest utility to the people. It may
essentially promote the public convenience, and aid the public
interests, and protect the public property. And if no persons can
be found willing to undertake such a work, unless they receive in
return the exclusive privilege of erecting it, and taking toll;
surely, it cannot be said, as of course, that such a grant, under
such circumstances, is, per se , against the interests of the
people. Whether the grant of a franchise is, or is not, on the
whole, promotive of the public interests, is a question of fact and
judgment, upon which different minds may entertain different
opinions. It is not to be judicially assumed to be injurious, and
then the grant to be reasoned down. It is a matter exclusively
confided to the sober consideration of the legislature; which is
invested with full discretion, and possesses ample means to decide
it. For myself, meaning to speak with all due deference for others,
I know of no power or authority confided to the judicial
department, to rejudge the decisions of the legislature upon such a
subject. It has an exclusive right to make the grant, and to decide
whether it be, or be not, for the public interests. It is to be
presumed, if the grant is made, that it is made from a high sense
of public duty, to promote the public welfare, and to establish the
public prosperity. In this very case, the legislature has, upon the
very face of the act, made a solemn declaration as to the motive
for passing it; that 'the erecting of a bridge over Charles River,
&c., will be of great public utility.' What court of justice is
invested with authority to gainsay this declaration? To strike it
out of the act, and reason upon the other words, as if it were not
there? To pronounce that a grant is against the interest of the
people, which the legislature has declared to be of great utility
to the people? It seems to me, to be our duty to interpret laws,
and not to wander into speculations upon their policy. And where, I
may ask, is the proof that Charles River bridge has been against
the interests of the people? The record contains no such proof; and
it is, therefore, a just presumption that it does not exist.

															Again, it is argued, that the present grant is a grant of a
monopoly, and of exclusive privileges; and therefore, to be
construed by the most narrow mode of interpretation. The sixth
article of the bill of rights of Massachusetts has been supposed to
support the objection; 'No man, nor corporation or association of
men, have any other title to obtain advantages or particular and
exclusive privileges, distinct from those of the community, than
what arises from the consideration of services rendered to the
public; and this title being in nature neither hereditary nor
transmissive to children, or descendants, or relations by blood,
the idea of a man born a magistrate, lawgiver or judge, is absurd
and unnatural.' Now, it is plain, that taking this whole clause
together, it is not an inhibition of all legislative grants of
exclusive privileges; but a promulgation of the reasons why there
should be no hereditary magistrates, legislators or judges. But it
admits, by necessary implication, the right to grant exclusive
privileges for public services, without ascertaining of what nature
those services may be. It might be sufficient to say, that all the
learned judges in the state court admitted, that the grant of an
exclusive right to take toll at a ferry, or a bridge, or a
turnpike, is not a monopoly which is deemed odious in law; nor one
of the particular and exclusive privileges, distinct from those of
the community, which are reprobated in the bill of rights. All that
was asserted by the judges, opposed to a liberal interpretation of
this grant, was, that it tended to promote monopolies. See the
case, 7 Pick. 116, 132, 137.

															Again, the old colonial act of 1641, against monopolies, has
been relied on, to fortify the same argument. That statute is
merely in affirmance of the principles of the English statute
against monopolies, of 21 James I., c. 3; and if it were now in
force (which it is not), it would require the same construction.
There is great virtue in particular phrases; and when it is once
suggested, that a grant is of the nature or tendency of a monopoly,
the mind almost instantaneously prepares itself to reject every
construction which does not pare it down to the narrowest limits.
It is an honest prejudice, which grew up, in former times, from the
gross abuses of the royal prerogatives; to which, in America, there
are no analogous authorities. But what is a monopoly, as understood
in law? It is an exclusive right, granted to a few, of something
which was before of common right. Thus, a privilege granted by the
king for the sole buying, selling, making, working or using a
thing, whereby the subject, in general, is restrained from that
liberty of manufacturing or trading, which before he had, is a
monopoly. 4 Bl. Com. 159; Bac. Abr. Prerogative, F. 4. My Lord
COKE, in his Pleas of the Crown (3 Inst. 181), has given this very
definition of a monopoly; and that definition was approved by HOLT
and TREBY (afterwards chief justices of king's bench), arguendo , as counsel, in the great case of the East India
Company v. Sandys , 10 How. State Trials 386. His words
are, that a monopoly is 'an institution by the king, by his grant,
commission, or otherwise, to any persons or corporations, of or for
the sole buying, selling, making, working or using of everything,
whereby any persons or corporations are sought to be restrained of
any freedom or liberty they had before, or hindered in their lawful
trade.' So, that it is not the case of a monopoly, if the subjects
had not the common right or liberty before to do the act, or
possess or enjoy the privilege or franchise granted, as a common
right. 10 How, State Trials 425. And it deserves an especial
remark, that this doctrine was an admitted concession, pervading
the entire arguments of the counsel who opposed, as well as of
those who maintained the grant of the exclusive trade, in the case
of the East India Company v. Sandys , 10 How. St. Tr.
386, a case which constitutes, in a great measure, the basis of
this branch of the law.

															No sound lawyer will, I presume, assert that the grant of a
right to erect a bridge over a navigable stream is a grant of a
common right. Before such grant, had all the citizens of the state
a right to erect bridges over navigable streams? Certainly, they
had not; and therefore, the grant was no restriction of any common
right. It was neither a monopoly; nor, in a legal sense, had it any
tendency to a monopoly. It took from no citizen what he possessed
before; and had no tendency to take it from him. It took, indeed,
from the legislature the power of granting the same identical
privilege or franchise to any other persons. But this made it no
more a monopoly, than the grant of the public stock or funds of a
state for a valuable consideration. Even in cases of monopolies,
strictly so called, if the nature of the grant be such that it is
for the public good, as in cases of patents for inventions, the
rule has always been, to give them a favorable construction, in
support of the patent, as Lord Chief Justice EYRE said, ut res
magis valeat quam pereat. Boulton v. Bill , 2 H. Bl. 463,
500.

															But it has been argued, and the argument has been pressed in
every form which ingenuity could suggest, that if grants of this
nature are to be construed liberally, as conferring any exclusive
rights on the grantees, it will interpose an effectual barrier
against all general improvements of the country. For myself, I
profess not to feel the cogency of this argument, either in its
general application to the grant of franchises, or in its special
application to the present grant. This is a subject upon which
different minds may well arrive at different conclusions, both as
to policy and principle. Men may, and will, complexionally differ
upon topics of this sort, according to their natural and acquired
habits of speculation and opinion. For my own part, I can conceive
of no surer plan to arrest all public improvements, founded on
private capital and enterprise, that to make the outlay of that
capital uncertain and questionable, both as to security and as to
productiveness. No man will hazard his capital in any enterprise,
in which, if there be a loss, it must be borne exclusively by
himself; and if there be success, he has not the slighest security
of enjoying the rewards of that success, for a single moment. If
the government means to invite its citizens to enlarge the public
comforts and conveniences, to establish bridges, or turnpikes, or
canals, or railroads, there must be some pledge, that the property
will be safe; that the enjoyment will be co-extensive with the
grant; and that success will not be the signal of a general
combination to overthrow its rights and to take away its profits.
The very agitation of a question of this sort is sufficient to
alarm every stockholder in every public enterprise of this sort,
throughout the whole country. Already, in my native state, the
legislature has found it necessary expressly to concede the
exclusive privilege here contended against; in order to insure the
accomplishment of a railroad for the benefit of the public. And
yet, we are told, that all such exclusive grants are to the
detriment of the public.

															But if there were any foundation for the argument itself, in a
general view, it would totally fail in its application to the
present case. Here, the grant, however exclusive, is but for a
short and limited period, more than two-thirds of which have
already elapsed; and when it is gone, the whole property and
franchise are to revert to the state. The legislature exercised a
wholesome foresight on the subject; and within a reasonable period,
it will have an unrestricted authority to do whatever it may
choose, in the appropriation of the bridge and its tolls. There is
not, then, under any fair aspect of the case, the slightest reason
to presume that public improvements either can, or will, be
injuriously retarded by a liberal construction of the present
grant.

															It have thus endeavored to answer, and I think I have
successfully answered all the arguments (which indeed run into each
other) adduced to justify a strict construction of the present
charter. I go further, and maintain, not only that it is not a case
for strict construction; but that the charter, upon its very face,
by its terms, and for its professed objects, demands from the
court, upon undeniable principles of law, a favorable construction
for the grantees. In the first place, the legislature has declared,
that the erecting of the bridge will be of great public utility;
and this exposition of its own motives for the grant, requires the
court to give a liberal interpretation, in order to promote, and
not to destroy, an enterprise of great public utility. In the next
place, the grant is a contract for a valuable consideration, and a
full and adequate consideration. The proprietors are to lay out a
large sum of money (and in those times it was a very large outlay
of capital) in erecting a bridge; they are to keep it in repair,
during the whole period of forty years; they are to surrender it in
good repair, at the end of that period, to the state, as its own
property; they are to pay, during the whole period, an annuity of
200 l. to Harvard College; and they are to incur other heavy
expenses and burdens, for the public accommodation. In return for
all these charges, they are entitled to no more than the receipt of
the tolls, during the forty years, for their reimbursement of
capital, interest and expenses. With all this, they are to take
upon themselves the chances of success; and if the enterprise
fails, the loss is exclusively their own. Nor let any man imagine,
that there was not, at the time when this charter was granted, much
solid ground for doubting success. In order to entertain a just
view of this subject, we must go back to that period of general
bankruptcy, and distress and difficulty. The constitution of the
United States was not only not then in existence, but it was not
then even dreamed of. The union of the states was crumbling into
ruins, under the old confederation. Agriculture, manufactures and
commerce were at their lowest ebb. There was infinite danger to all
the states, from local interests and jealousies, and from the
apparent impossibility of a much longer adherence to that shadow of
a government, the continental congress. And even four years
afterwards, when every evil had been greatly aggravated, and civil
war was added to other calamities, the constitution of the United
States was all but shipwrecked, in passing through the state
conventions; it was adopted by very slender majorities. These are
historical facts, which required no coloring to give them effect,
and admitted of no concealment, to seduce men into schemes of
future aggrandizement. I would even now put it to the common sense
of every man, whether, if the constitution of the United States had
not been adopted, the charter would have been worth a forty years'
purchase of the tolls.

															This is not all. It is well known, historically, that this was
the very first bridge ever constructed, in New England, over
navigable tide-waters so near the sea. The rigors of our climate,
the dangers from sudden thaws and freezing, and the obstructions
from ice in a rapid current, were deemed by many persons to be
insuperable obstacles to the success of such a project. It was
believed, that the bridge would scarcely stand a single severe
winter. And I myself am old enough to know, that in regard to other
arms of the sea, at much later periods, the same doubts have had a
strong and depressing influence upon public enterprises. If Charles
River bridge had been carried away, during the first or second
season after its erection, it is far from being certain, that up to
this moment, another bridge, upon such an arm of the sea, would
ever have been erected in Massachusetts. I state these things,
which are of public notoriety, to repel the notion that the
legislature was surprised into an incautions grant, or that the
reward was more than adequate to the perils. There was a full and
adequate consideration, in a pecuniary sense, for the charter. But,
in a more general sense, the erection of the bridge, as a matter of
accommodation, has been incalcuably beneficial to the public.
Unless, therefore, we are wholly to disregard the declarations of
the legislature, and the objects of the charter, and the historical
facts of the times; and indulge in mere private speculations of
profit and loss, by our present lights and experience; it seems to
me, that the court is bound to come to the interpretation of this
charter, with a persuasion that it was granted in furtherance, and
not in derogation, of the public good.

															But I do not insist upon any extraordinary liberality in
interpreting this charter. All I contend for is, that it shall
receive a fair and reasonable interpretation; so as to carry into
effect the legislative intention, and secure to the grantees a just
security for their privileges. I might, indeed, well have spared
myself any investigation of the principles upon which royal and
legislative grants are ordinarily to be construed; for this court
has itself furnished an unequivocal rule for interpreting all
public contracts. The present grant is confessedly a contract; and
in Huidekoper's Lessee v. Douglass , 3 Cranch 1, this
court said: 'This is a contract, and although a state is a party,
it ought to be construed according to those well-established
principles which regulate contracts, generally;' that is, precisely
as in cases between mere private persons, taking into consideration
the nature and objects of the grant. A like rule was adopted by
this court, in the case of a contract by the United States. United States v. Gurney , 4 Cranch 333. And the good
sense and justice of the rule seem equally irresistible.

															Let us now enter upon the consideration of the terms of the
charter. In my judgment, nothing can be more plain, than that it is
a grant of a right to errect a bridge between Boston and
Charlestown, in the place where the ferry between those towns was
kept. It has been said, that the charter itself does not describe
the bridge as between Charlestown and Boston, but grants an
authority to errect 'a bridge over Charles river, in the place
where the old ferry was then kept;' and that these towns are not
named, except for the purpose of describing the then ferry. Now,
this seems to me, with all due deference, to be a distinction
without a difference. The bridge is to be erected in the place
where the old ferry then was. But where was it to begin? and where
was it to terminate? Boston and Charlestown are the only possible termini , for the ferry-ways were there; and it was to be
built between Boston and Charlestown, because the ferry was between
them. Surely, according to the true sense of the preamble, where
alone the descriptive words occur (for it is a great mistake to
suppose, that the enacting clause anywhere refers, except by
implication, to the location of the bridge), it is wholly
immaterial, whether we read the clause, 'whereas, the erecting of a
bridge over Charles river, in the place where the ferry between
Boston and Charlestown is now kept;' or 'whereas, the erecting of a
bridge over Charles river, between Charlestown and Boston, where
the ferry is now kept.' In each case, the bridge is to be between
Boston and Charlestown; and the termini are the ferry-ways.
The title of the act puts this beyond all controversy; for it is
'an act for incorporating certain persons for the purpose of
building a bridge over Charles river, between Boston and
Charlestown, &c.' But, then, we are told, that no rule in
construing statutes is better settled, than that the title of an
act does not constitute any part of the act. If, by this, no more
be meant, than that the title of an act constitutes no part of its
enacting clauses, the accuracy of the position will not be
disputed. But if it is meant to say, that the title of the act does
not belong to it, for any purpose of explanation or construction,
and that, in no sense, is it any part of the act; I, for one, must
deny that there is any such settled principle of law. On the
contrary, I understand that the title of an act (though it is not
ordinarily resorted to), may be legitimately resorted to, for the
purpose of ascertaining the legislative intention, just at much as
any other part of the act. In point of fact, it is usually resorted
to, whenever it may assist us in removing any ambiguities in the
enacting clauses. Thus, in the great case of Sutton's
Hospital , 10 Co. 23, 24 b , the title of an act of
parliament was thought not unworthy to be examined, in construing
the design of the act. In Boulton v. Bull , 2 H. Bl.
463, 500, the effect of the title of an act was largely insisted
upon in the argument, as furnishing a key to the intent of the
enacting clauses. And Lord Chief Justice EYRE admitted the
propriety of the argument, and met it, by saying, that, in that
case, he would, if necessary, expound the word 'engine,' in the
body of the bill, in opposition to the title to it, to mean a
'method,' in order to support the patent. In the case of the United States v. Fisher , 2 Cranch 358, the supreme
court of the United States expressly recognised the doctrine, and
gave it a practical application. In that case, the chief justice,
in delivering the opinion of the court, after adverting to the
argument at the bar, respecting the degree of influence which the
title of an act ought to have in construing the enacting clauses,
said: 'Where the mind labors to discover the design of the
legislature, it seizes everything from which aid can be derived;
and in such a case, the title claims a degree of notice, and will
have its due share of consideration.' According to my views of the
terms of the charter, the grant, then, is of the franchise of
erecting a bridge over Charles river, between Charlestown and
Boston, and of taking tolls or pontage from passengers. It is,
therefore, limited to those towns; and does not exclude the
legislature from any right to grant a bridge over the same river,
between any other towns and Boston; as, for example, between
Chelsea and Boston, or Cambridge and Boston, or Roxbury and
Boston.

															But although, in my judgment, this is the true construction of
the limits of the charter, ex vi terminorum , my opinion does
not, in any important degree, rest upon it. Taking this to be a
grant of a right to build a bridge over Charles river, in the place
where the old ferry between Charlestown and Boston was then kept
(as is contended for by the defendants), still it has, as all such
grants must have, a fixed locality, and the same question meets us;
is the grant confined to the mere right to erect a bridge on the
proper spot, and to take toll of the passengers, who may pass over
it, without any exclusive franchise on either side of the local
limits of the bridge? or does it, by implication, include an
exclusive franchise on each side, to an extent which shall shut out
any injurious competition? In other words, does the grant still
leave the legislature at liberty to erect other bridges on either
side, free or with tolls, even in juxta-position with the timbers
and planks of this bridge? or is there an implied obligation on the
part of the legislature, to abstain from all acts of this sort,
which shall impair or destroy the value of the grant? The
defendants contend, that the exclusive right of the plaintiffs
extend no farther than the planks and timbers of the bridge; and
that the legislature is at full liberty to grant any new bridge,
however near; and although it may take away a large portion, or
even the whole of the travel which would otherwise pass over the
bridge of the plaintiffs. And to this extent, the defendants must
contend; for their bridge is, to all intents and purposes, in a
legal and practical sense, contiguous to that of the
plaintiffs.

															The argument of the defendants is, that the plaintiffs are to
take nothing by implication. Either (say they) the exclusive grant
extends only to the local limits of the bridge; or it extends the
whole length of the river, or, at least, up to old Cambridge
bridge. The latter construction would be absurd and monstrous; and
therefore, the former must be the true one. Now, I utterly deny the
alternative involved in the dilemma. The right to build a bridge
over a river, and to take toll, may well include an exclusive
franchise, beyond the local limits of the bridge; and yet not
extend through the whole course of the river, or even to any
considerable distance on the river. There is no difficulty, in
common sense, or in law, in maintaining such a doctrine. But then,
it is asked, what limits can be assigned to such a franchise? The
answer is obvious; the grant carries with it an exclusive
franchise, to a reasonable distance on the river; so that the
ordinary travel to the bridge shall not be diverted by any new
bridge, to the injury or ruin of the franchise. A new bridge, which
would be a nuisance to the old bridge, would be within the reach of
its exclusive right. The question would not be so much as to the
fact of distance, as it would be as to the fact of nuisance. There
is nothing new in such expositions of incorporeal rights; and
nothing new in thus administering, upon this foundation, remedies
in regard thereto. The doctrine is coeval with the common law
itself. Suppose, an action is brought for shutting up the ancient
lights belonging to a messuage; or for diverting a water-course; or
for flowing back a stream; or for erecting a nuisance near a
dwelling-house; the question in such cases is not one of mere
distance; of mere feet and inches, but of injury-permanent, real
and substantial injury-to be decided upon all the circumstances of
the case. But of this I shall speak again hereafter.

															Let us see what is the result of the narrow construction
contended for by the defendants. If that result be such as is
inconsistent with all reasonable presumptions growing out of case;
if it be repugnant to the principles of equal justice; if it will
defeat the whole objects of the grant; it will not, I trust, be
insisted on, that this court is bound to adopt it.

															I have before had occasion to take notice, that the original
charter is a limited one for forty years; that the whole
compensation of the proprietors for all their outlay of capital,
their annuity to Harvard College and their other annual burdens and
charges, is to arise out of the tolls allowed them during that
period. No other fund is provided for their indemnity; and they are
to take it, subject to all the perils of failure and the chances of
an inadequate remuneration. The moment the charter was accepted,
the proprietors were bound to all the obligations of this contract,
on their part. Whether the bargain should turn out to be good or
bad, productive or unproductive of profit, did not vary their
duties. The franchise was not a mere jus privatum . From the
moment of its acceptance, and the erection of the bridge, it became
charged with a jus publicum . The government had a right to
insist that the bridge should be kept in perfect repair, for public
travel, by the proprietors; that the bridge should be lighted; that
the draw should be raised without expense, for the purposes of
navigation; and if the proprietors had refused or neglected to do
their duty in any of these respects, they would have been liable to
a public prosecution. It could be no apology or defence, that the
bridge was unprofitable; that the tolls were inadequate; that the
repairs were expensive; or that the whole concern was a ruinous
enterprise. The proprietors took the charter cum onere , and
must abide by their choice. It is no answer to all this, to say,
that the proprietors might surrender their charter, and thus escape
from the burden. They could have no right to make such a surrender.
It would depend upon the good pleasure of the government, whether
it would accept of such a surrender, or not; and until such an
acceptance, the burdens would be obligatory to the last hour of the
charter. And when that hour shall have arrived, the bridge itself,
in good repair, is to be delivered to the state.

															Now, I put it to the common sense of every man, whether if, at
the moment of granting the charter, the legislature had said to the
proprietors; you shall build the bridge; you shall bear the
burdens; you shall be bound by the charges; and your sole
reimbursement shall be from the tolls of forty years: and yet we
will not even guaranty you any certainty of receiving any tolls; on
the contrary; we reserve to ourselves the full power and authority
to erect other bridges, toll or free bridges, according to our own
free will and pleasure, contiguous to yours, and having the same termini with yours; and if you are successful, we may thus
supplant you, divide, destroy your profits, and annihilate your
tolls, without annihilating your burdens: if, I say, such had been
the language of the legislature, is there a man living, of ordinary
discretion or prudence, who would have accepted such a charter,
upon such terms? I fearlessly answer, no. There would have been
such a gross inadequacy of consideration, and such a total
insecurity of all the rights of property, under such circumstances,
that the project would have dropped still-born. And I put the
question further, whether any legislature, meaning to promote a
project of permanent, public utility (such as this confessedly
was), would ever have dreamed of such a qualification of its own
grant, when it sought to enlist private capital and private
patronage to insure the accomplishment of it? Yet, this is the very
form and pressure of the present case. It is not an imaginary and
extravagant case. Warren bridge has been erected, under such a
supposed reserved authority, in the immediate neighborhood of
Charles River bridge; and with the same termini , to
accommodate the same line of travel. For a half-dozen years, it was
to be a toll bridge, for the benefit of the proprietors, to
reimburse them for their expenditures; at the end of that period,
the bridge is to become the property of the state, and free of
toll; unless the legislature should thereafter impose one. In point
of fact, it has since become, and now is, under the sanction of the
act of incorporation, and other subsequent acts, a free bridge,
without the payment of any tolls, for all persons. So that, in
truth, here now is a free bridge, owned by and erected under the
authority of the commonwealth, which necessarily takes away all the
tolls from Charles River bridge; while its prolonged charter has
twenty years to run. And yet the act of the legislature
establishing Warren bridge, is said to be no violation of the
franchise granted to the Charles River bridge. The legislature may
annihilate, nay, has annihilated, by its own acts, all chance of
receiving tolls, by withdrawing the whole travel; though it is
admitted, that it cannot take away the barren right to gather
tolls, if any should occur, when there is no travel to bring a
dollar. According to the same course of argument, the legislature
would have a perfect right to block up every avenue to the bridge,
and to obstruct every highway which should lead to it, without any
violation of the chartered rights of Charles River bridge; and at
the same time, it might require every burden to be punctiliously
discharged by the proprietors, during the prolonged period of
seventy years. I confess, that the very statement of such
propositions is so startling to my mind, and so irreconcilable with
all my notions of good faith, and of any fair interpretation of the
legislative intentions, that I should always doubt the soundness of
any reasoning which should conduct me to such results.

															But it is said, that there is no prohibitory covenant in the
charter, and no implications are to be made of any such
prohibition. The proprietors are to stand upon the letter of their
contract, and the maxim applies, de non apparentibus et non
existentibus, eadem est lex . And yet it is conceded, that the
legislature cannot revoke or resume this grant. Why not, I pray to
know? There is no negative covenant in the charter; there is no
express prohibition to be found there. The reason is plain. The
prohibition arises by natural, if not by necessary, implication. It
would be against the first principles of justice, to presume that
the legislature reserved a right to destroy its own grant. That was
the doctrine in Fletcher v. Peck , 6 Cranch 87, in
this court; and in other cases turning upon the same great
principle of political and constitutional duty and right. Can the
legislature have power to do that indirectly, which it cannot do
directly? If it cannot take away, or resume, the franchise itself,
can it take away its whole substance and value? If the law will
create an implication, that the legislature shall not resume its
own grant, is it not equally as natural and as necessary an
implication, that the legislature shall not do any act directly to
prejudice its own grant, or to destroy its value? If there were no
authority in favor of so reasonable a doctrine, I would say, in the
language of the late lamented Mr. Chief Justice PARKER, in this
very case: 'I ground it on the principles of our government and
constitution, and on the immutable principles of justice, which
ought to bind governments, as well as people.'

															But it is most important to remember, that in the construction
of all legislative grants, the common law must be taken into
consideration; for the legislature must be presumed to have in view
the general principles of construction which are recognised by the
common law. Now, no principle is better established, than the
principle, that when a thing is given or granted, the law giveth,
impliedly, whatever is necessary for the taking and enjoying the
same. This is laid down in Co. Litt. 56 a; and is, indeed,
the dictate of common sense applicable to all grants. Is not the
unobstructed possession of the tolls, indispensable to the full
enjoyment of the corporate rights granted to the proprietors of
Charles River bridge? If the tolls were withdrawn, directly or
indirectly, by the authority of the legislature, would not the
franchise be utterly worthless? A burden, and not a benefit? Would
not the reservation of authority in the legislature to create a
rival bridge, impair, if it did not absolutely destroy, the
exclusive right of the proprietors of Charles River bridge? I
conceive it utterly impossible to give any other, than an
affirmative, answer to each of these questions. How, then, are we
to escape from the conclusion, that that which would impair or
destroy the grant, is prohibited by implication of law, from the
nature of the grant? 'We are satisfied,' said Mr. Chief Justice
PARSONS, in delivering the opinion of the court, in Wales v. Stetson , 2 Mass. 143, 146, 'that the rights legally vested
in any corporation cannot be controlled or destroyed by any
statute, unless a power for that purpose be reserved to the
legislature, in the act of incorporation.' Where is any such
reservation to be found in the charter of Charles River bridge?

															My brother WASHINGTON (than whom few judges ever possessed a
sounder judgment or clearer learning), in his able opinion in the
case of Dartmouth College v. Woodward , 4 Wheat. 658,
took this same view of the true sense of the passage in
Blackstone's Commentaries, and uses the following strong language
on the subject of a charter of the government: 'Certain obligations
are created (by it) both on the grantor and the grantees. On the
part of the former, it amounts to an extinguishment of the king's
prerogative to bestow the same identical franchise on another
corporate body, because it would prejudice his former grant. It
implies, therefore, a contract not to re-assert the right to grant
the franchise to another, or to impair it.' I know not how language
more apposite could be applied to the present case. None of us then
doubted its entire correctness, when he uttered it; and I am not
able to preceive how the legal inference can now be escaped. The
case of the Chesapeake and Ohio Canal Company v. Baltimore and Ohio Railroad Company , 4 Gill & Johns. 1,
4, 6, 143, 146, 149, fully sustains the same doctrine; and most
elaborately expound its nature, and operation and extent.

															But we are not left to mere general reasoning on this subject.
There are cases of grants of the crown, in which a like
construction has prevailed, which are as conclusive upon this
subject, in point of authority, as any can be. How stands the law
in relation to grants by the crown, of fairs, markets and ferries?
I speak of grants, for all claims of this sort resolve themselves
into grants; a prescription being merely evidence of, and
pre-supposing, an ancient grant, which can be no longer traced,
except by the constant use and possession of the franchise. If the
king grants a fair, or a market, or a ferry, has the franchise no
existence beyond the local limits where it is erected? Does the
grant import no more than a right to set up such fair, or market,
or ferry, leaving in the crown full power and authority to make
other grants of the same nature, in juxta-position with those local
limits? No case, I will venture to say, has ever maintained such a
doctrine; and the common law repudiates it (as will be presently
shown) in the most express terms.

															The authorities are abundant, to establish, that the king cannot
make any second grant which shall prejudice the profits of the
former grant. And why not? Because the grant imposes public burdens
on the grantee, and subjects him to public charges, and the profits
constitute his only means of remuneration; and the crown shall not
be at liberty directly to impair, much less, to destroy, the whole
value and objects of its grant. In confirmation of this reasoning,
it has been repeatedly laid down in the books, that when the king
grants a fair, or market, or ferry, it is usual to insert in all
such grants a clause or proviso, that it shall not be to the
prejudice of any other existing franchise of the same nature; as a
fair, or market, or ferry. But if such a clause or proviso is not
inserted, the grant is always construed with the like restriction;
for such a clause will be implied by law. And therefore, if such
new grant is without such a clause, if it occasion any damage
either to the king, or to a subject, in any other thing, it will be
revocable. So my Lord COKE laid it down in 2 Inst. 406. The judges
laid down the same law, in the house of lords, in the case of the King v. Butler , 3 Lev. 220, 222; which was the case
of a grant of a new market, to the supposed prejudice of an old
market. Their language on that occasion deserves to be cited: it
was, 'that the king has an undoubted right to repeal a patent
wherein he is deceived, or his subjects prejudiced, and that by scire facias .' And, afterwards, referring to cases where a
writ of ad quod damnum had been issued, they added, 'there,
the king takes notice, that it is not ad damnum; and yet, if
it be ad damnum , the patent is void; for in all such
patents, the condition is implied, viz., that it be not ad
damnum of the neighboring merchants.' And they added further,
'this is positively alleged (in the scire facias ), that concessio predicta est ad damnum et depauperationem ,
&c.; which is a sufficient cause to revoke the patent, if there
were nothing more.' The same doctrine is laid down in Mr. Serjeant
Williams's learned note (2) to the case of Yard v. Ford , 2 Saund. 172. Now, if, in the grant of any such
franchise of a fair, or market, or ferry, there is no implied
obligation or condition that the king will not made any subsequent
grant to the prejudice of such prior grant, or impairing its
rights, it is inconceivable, why such a proviso should be implied.
But if (as the law certainly is) the king can make no subsequent
grant, to the prejudice of his former grant, then the reason of
such implication is clear; for the king will not be presumed to
intend to violate his duty, but rather to be deceived in his second
grant, if to the prejudice of the first.

															It is upon this ground, and this ground only, that we can
explain the established doctrine in relation to ferries. When the
crown grants a ferry from A. to B., without using any words which
import it to be an exclusive ferry, why is it (as will be presently
shown), that by the common law, the grant is construed to be
exclusive of all other ferries between the same places or termini; at least, if such ferries are so near that they are
injurious to the first ferry, and tend to a direct diminution of
its receipts? Plainly, it must be, because from the nature of such
a franchise, it can have no permanent value, unless it is
exclusive; and the circumstance that during the existence of the
grant, the grantee has public burdens imposed upon him, raises the
implication, that nothing shall be done to the prejudice of it,
while it is a subsisting franchise. The words of the grant do,
indeed, import per se , merely to confer a right of ferry
between A. and B.; but the common law steps in, and, ut res
magis valeat quam pereat , expands the terms into an exclusive
right, from the very nature, and objects and motives, of the
grant.

															I say this is the theory of the common law on this subject. Let
us now see, if it is not fully borne out by the authorities in
relation to ferries; a franchise, which approaches so near to that
of a bridge, that human ingenuity has not as yet been able to state
any assignable difference between them, except that one includes
the right of pontage, and the other of passage or ferriage (see Webb's Case , 8 Co. 47 b ); that is, each includes
public duties and burdens, and an indemnity for these duties and
burdens by a right to receive tolls. A grant of a ferry must always
be by local limits; it must have some termini; and must be
between some fixed points, villes or places. But is the franchise
of a ferry limited to the mere ferry-ways? Unless I am greatly
mistaken, there is an unbroken series of authorities establishing
the contrary doctrine; a doctrine firmly fixed in the common law,
and brought to America by our ancestors as a part of their
inheritance. The case of a ferry is put as a case of clear law by
PASTON, Justice, as long ago as in 22 Hen. V. 14 b . 'If,'
says he, 'I have a market or a fair on a particular day, and
another sets up a market on fair on the same day, in a ville which is near to my market, so that my market, or my fair, is
impaired, I shall have against him an assize of nuisance, or an
action on the case.' And the same law is, 'if I have an ancient
ferry in a ville , and another sets up another ferry upon the
same river, near to my ferry, so that the profits of my ferry are
impaired, I shall have an action on the case against him.' And Newton (who, it seems, was of counsel for the defendant in
that case) admitted the law to be so; and gave as a reason, 'for
you are bound to support the ferry, and to serve and repair it for
the ease of the common people, and otherwise you shall be
grievously amerced; and it is inquirable before the sheriff, at his
tourn, and also before the justices in eyre.' As to the case of a
market or fair, Newton said, that in the king's grant of a
market or fair, there is always a proviso that it should not be to
the nuisance of another market or fair. To which PASTON, Justice,
replied, 'suppose the king grants to me a market, without any
proviso, if one sets up, after that time, another market, which is
a nuisance to that, I shall have against him an assize of
nuisance.'

															The doctrine here laid down seems indisputable law; and it was
cited and approved by Lord ABINGER, in Huzzey v. Field , 2 Cromp. Mees. & Rosc. 432; to which reference
will presently be made. In Bacon's Abridgment, Prerogative, F. 1,
it is laid down, 'that if the king creates or grants a fair or
market, to a person, and afterwards grants another to another
person, to the prejudice of the first, the second grant is void:'
see 16 Vin. Abr. Nuisance, G. pl. 2. The same law is laid down in 3
Bl. Com. 218-19. 'If (says he) I am entitled to hold a fair or
market, and another person sets up a fair or market, so near mine
that it does me a prejudice, it is a nuisance to the freehold which
I have in my market or fair.' He adds, 'if a ferry is erected on a
river, so near another ancient ferry as to draw away the custom, it
is a nuisance to the old one; for where there is a ferry by
prescription, the owner is bound always to keep it in repair and
readiness, for the ease of the king's subjects, otherwise he may be
grievously amerced. It would be, therefore, extremely hard, if a
new ferry were suffered to share the profits, which does not also
share the burden.' The same doctrine is to be found in Comyn's
Digest (Action upon the Case for a Nuisance, A.) and in many other
authorities. See Yard v. Ford , 2 Saund. 175, and note
2; Fitz. N. B. 184; Hale de Port. Maris, ch. 5, Harg. Law Tracts,
p. 59; Com. Dig. Piscary, B.; Ibid. Market, C. 2, C. 3; 2 Bl. Com.
27.

															The doctrine is, in England, just as true now, and just as
strictly enforced, as it was three centuries ago. In Blisset v. Hart , Willes 508, the plaintiff recovered damages for a
violation of his right to an ancient ferry, against the defendant,
who had set up a neighboring ferry to his nuisance. The court said,
'A ferry is publici juris . It is a franchise, that no
one can erect without a license from the crown; and when one is
erected, another cannot be erected without an ad quod
damnum . If a second is erected, without a license, the crown
has a remedy by a quo warranto; and the former grantee has a
remedy by action.' The case of Tripp v. Frank , 4 T.
R. 666, proceeds upon the admission of the same doctrine; as does Prince v. Lewis , 5 Barn. & Cres. 363; Peter v. Kendall , 6 Ibid. 703; Mosley v. Chadwick , 7 Ibid. 47, note a; and Mosley v. Walker , Ibid. 40.

															There is a very recent case (already alluded to), which was
decided by the court of exchequer, upon the fullest consideration,
and in which the leading authorities upon this point were discussed
with great acuteness and ability. I mean the case of Huzzey v. Field , in 1835, 2 Cromp. Mees. & Rosc. 432. Lord
ABINGER, in delivering the opinion of the court on that occasion,
used the following language: 'So far, the authorities appear to be
clear, that if a new ferry be put up, without the king's license,
to the prejudice of an old one, an action will lie; and there is no
case, which has the appearance of being to the contrary, except
that of Tripp v. Frank , hereafter mentioned. These
old authorities proceeded upon the ground, first, that the grant of
the franchise is good in law, being for a sufficient consideration,
to the subject, who, as he received a benefit, may have, by the
grant of the crown, a corresponding obligation imposed upon him, in
return for the benefit received; and secondly, that if another,
without legal authority, interrupts the grantee in the exercise of
his franchise, by withdrawing the profits of passengers, which he
would otherwise have had, and which he has, in a manner, purchased
from the public, at the price of his corresponding liability, the
disturber is subject to an action for the injury. And the case is
in this respect analogous to a grant of a fair or market, which is
also a privilege of the nature of a monopoly. A public ferry, then,
is a public highway of a special description; and its termini must be places where the public have rights, as
towns or villes, or highways leading to towns or villes. The right
of the grantee is, in one case, an exclusive right of carrying from
town to town; in the other, of carrying from one point to the
other, all who are going to use the highway, to the nearest town or ville to which the highway leads on the other side. Any new
ferry, therefore, which has the effect of taking away such
passengers, must be injurious. For instance, if any one should
construct a new landing place, at a short distance of one terminus of the ferry, and make a proclamation of carrying
passengers over from the other terminus , and then landing
them at that place, from which they pass to the same public highway
upon which the ferry is established, before it reaches any town or ville , by which the passengers go immediately to the first
and all the villes, to which that highway leads; there could not be
any doubt, but such an act would be an infringement of the right of
ferry, whether the person so acting intended to defraud the grantee
of the ferry, or not. If such new ferry be nearer, or the boat used
more commodious, or the fare less; it is obvious, that all the
custom must be inevitably withdrawn from the old ferry. And thus,
the grantee would be deprived of all the benefit of the franchise,
whilst he continued liable to all the burdens imposed upon
him.'

															Language more apposite to the present case could scarcely have
been used. And what makes it still stronger is, that the very case
before the court was of a new ferry, starting on one side, from the
same town, but not at the same place in the town, to a terminus on the other side, different from that of the old
ferry-house, and more than half a mile from it, and thence by a
highway, communicated with the highway which was connected with the
old ferry, at a mile distant from the ferry. Now, if the right of
the old ferry did not, by implication, extend on either side beyond
its local termini , no question could have arisen as to the
disturbance. Trotter v. Harris , 2 Younge & Jerv.
285, proceeded upon similar principles; though it did not call for
so exact an exposition of them.

															It is observable, that in the case of Huzzey v. Field , the defendant did not claim under any license or
grant from the crown; and therefore, it may be supposed in
argument, that it does not apply to a case where that is a grant of
the new ferry from the crown. But in point of law, there is no
difference between the cases. In each case, the new ferry must be
treated as a clear disturbance of the rights of the old ferry, or
it is not, in either case; for if the first grant does not, by
implication, carry an exclusive right above and below its local termini , then there can be no pretence, in either case, for
the grantee of the old ferry to complain of the new ferry; for it
does not violate his rights under his grant. If the first grant
does, by implication, carry an exclusive right above and below its
local termini , so far as it may be prejudiced or disturbed
by a new ferry, then it is equally clear, upon established
principles, that the king cannot, by a new grant, prejudice his
former grant; for the law deprives him of any such prerogative. It
is true, that where the new ferry is got up without a license from
the crown, it may be abated as a nuisance, upon a quo
warranto , or information by the crown. But this will not confer
any right of action on the grantee of the old ferry, unless his own
rights have been disturbed.

															I have said, that this is the result of established principles;
and the case of the Islington Market , recently before the
judges of England, upon certain questions submitted to them by the
house of lords, is an authority of the most solemn and conclusive
nature, upon this identical point of franchise. What gives it still
more importance is, that in the last three questions proposed to
the judges by the house of lords, the very point as to the power of
the king to make a second grant of a market, to the prejudice of
his former grant, within the limits of the common law, arose, and
was pointedly answered in the negative. On that occasion, the
judges said, that while the first grant of a market remains
unrepealed, even the default of the grantee of the franchise, in
not providing, according to his duty, proper accommodations for the
public, cannot operate, in point of law, as a ground for granting a
new charter to another, to hold a market, within the common law,
which shall really be injurious to the existing market. The judges,
after adverting to the usual course of the issuing of a writ of ad quod damnum , in cases where a new market is asked for,
added: 'We do not say, that a writ of ad quod damnum is
absolutely necessary. But if the crown were to grant a new charter,
without a writ of ad quod damnum , and it should appear, that
the interests of other persons were prejudiced, the crown would be
supposed to be deceived, and the grant might be repealed on a scire facias .' And they cited, with approbation, the
doctrine of Lord COKE, in 2 Inst. 406, that 'if one held a market,
either by prescription or by letters-patent, and another obtains a
market, to the nuisance of a former market, he shall not tarry till
he have avoided the letters-patent of the latter market by course
of law, that he may have an assize of nuisance:' thus establishing
the doctrine, that there is no difference in point of law, whether
the first market be by prescription or by grant; or whether the new
market be with, or without, a patent from the crown. In each case,
the remedy is the same for the owner of the first market, if the
new market is a nuisance to him. The judges also held, that the
circumstance of the benefit of the public requiring a new market
would not, of itself, warrant the grant of the new market.

															Mr. Dane, in his Abridgment (2 Dane's Abr. ch. 67, p. 683), lays
down the doctrine in terms equally broad and comprehensive, as
applicable to America. After having spoken of a ferry, as imposing
burdens publici juris , he adds, 'in this way, a ferry
becomes property, an incorporeal hereditament; the owners of which,
for the public convenience, being obliged by law to perform certain
public services, must, as a reasonable equivalent, be protected in
this property.' And he cites the case of Chadwick v. Proprietors of the Haverhill Bridge , as directly in point;
that the erection of a neighboring bridge, under the authority of
the legislature, is a nuisance to a ferry. Notwithstanding all the
commentary bestowed on that case, to escape from its legal
pressure, I am of opinion, that the report of the referees never
could have been accepted by the court, or judgment given thereon,
if the declaration had not stated a right which, in point of law,
was capable of supporting such a judgment. The court seems, from
Mr. Dane's statement of the case, clearly to have recognised the
title of the plaintiff, if he should prove himself the owner of a
ferry. Besides, without disparagement to any other man, Mr. Dane
himself (the chairman of the referees), from his great learning and
ability, is well entitled to speak with the authority of a
commentator of the highest character, upon such a subject.

															It is true, that there is the case of Churchman v. Tunstal , Hardr. 162 where a different doctrine, as to a
ferry, was laid down. But that case is repugnant to all former
cases, as well as later cases; and Lord Ch. Baron MACDONALD, in Attorney-General v. Richard , 2 Anstr. 603, informs
us, that it was afterwards overturned. Lord ABINGER, in Huzzey v. Field , 2 Comp. Mees. & Rosc. 432, goes
further, and informs us, that after the bill in that case was
dismissed (which was a bill by a farmer of a ferry, as it should
seem, under the crown, for an injunction to restrain the defendant,
who had lands on both sides of the Thames, three-quarters of a mile
off, and who was in the habit of ferrying passengers across, from
continuing to do so), another bill was brought, after the
restoration, in 1663, and a decree made by Lord HALE in favor of
the plaintiff, that the new ferry should be put down. This last
determination is exceedingly strong, carrying the implication in
regard to the franchise of a ferry, as exclusive of all other
ferries injurious to it, to a very enlarged extent; and it was made
by one of the greatest judges who ever adorned the English
bench.

															But it has been suggested, that the doctrine as to ferries is
confined to ancient ferries by prescription, and does not apply to
those where there is a grant which may be shown. In the former
case, the exclusive right may be proved by long use, and exclusive
use; in the latter, the terms of the grant show whether it is
exclusive or not; and if not stated to be exclusive, in the grant,
it cannot, by implication, be presumed to be exclusive. Now, there
is no authority shown for such a distinction; and it is not sound
in itself. If a ferry exists by prescription, nothing more, from
the nature of the thing, can be established by long possession,
than that the ferry originated in some grant, and that it has local
limits, from the ferry-ways on one side to those on the other side.
The mere absence of any other near ferry proves nothing, except
that there is no competition; for until there is some interference,
by the erection of another ferry, there can be nothing exclusive,
above or below the ferry-ways, established by the mere use of the
ferry. If such an interference should occur, then the question
might arise; and the long use could establish no more than the
rightful possession of the franchise. The question, whether the
franchise is exclusive or not, must depend upon the nature of such
a franchise at the common law, and the implications belonging to
it. In short, it is, in the authorities, taken to be exclusive,
unless a contrary presumption arises from the facts, as it did in Holcroft v. Heel , 1 Bos. & Pul. 400. But Lord
COKE, in 2 Inst. 406, lays down the law as equally applicable to
all cases of prescription and of grant: 'If, says he, one hath a
market, either by prescription or by letters-patent of the king,
another obtains a market, to the nuisance of the former market, he
shall not tarry till he have avoided the letters-patent of the
latter market, by course of law; but he may have an assize of
nuisance.' The same rule must, for the same reason, apply to fairs
and ferries. The case of Prince v. Lewis , 5 Barn.
& Cres. 363, was the case of the grant of a market, and not of
a market by prescription; yet no one suggested any distinction on
this account. Holcroft v. Heel , 1 Bos. & Pul.
400, was the case of a grant of a market by letters-patent.

															In Ogden v. Gibbons , 4 Johns. Ch. 150, Mr.
Chancellor KENT recognises, in the most ample manner, the general
principles of the common law. Speaking of the grant, in the case,
of an exclusive right to navigate with steamboats from New York to
Elizabethtown Point, &c., he declared, that the true intent was
to include not merely that point, but the whole shore or navigable
part of Elizabethtown. 'Any narrower construction,' said he, 'in
favor of the grantor, would render the deed a fraud upon the
grantee. It would be like granting an exclusive right of ferriage
between two given points, and the setting up a rival ferry, within
a few rods of those very points, and within the same course of the
line of travel. The common law contained principles applicable to
this very case, dictated by a sounder judgment, and a more
enlightened morality. If one had a ferry by prescription, and
another erected a ferry so near to it as to draw away its custom,
it was a nuisance, for which the injured party had his remedy by
action, &c. The same rule applies, in its spirit and substance,
to all exclusive grants and monopolies. The grant must be so
construed so as to give it due effect by excluding all contiguous
and injurious competition.' Language more apposite to the present
case could not will be imagined. Here, there is an exclusive grant
of a bridge from Charlestown to Boston on the old ferry-ways; must
it not also be so construed as to exclude all contiguous and
injurious competition? Such an opinion, from such an enlightened
judge, is not to be overthrown by general suggestions against
making any implications in legislative grants.

															The case of the Newburgh Turnpike Company v. Miller , 5 Johns. Ch. 101, decided by the same learned judge,
is still more directly in point; and, so far as his authority can
go, conclusively establishes the doctrine, not only that the
franchise of a ferry is not confined to the ferry-ways, but that
the franchise of a bridge is not confined to the termini and
local limits of the bridge. In that case, the plaintiffs had
erected a toll-bridge over the river Wallkill, in connection with a
turnpike, under an act of the legislature; and the defendants
afterwards erected another road and bridge near to the former, and
thereby diverted the toll from the plaintiffs' bridge. The suit was
a bill in chancery, for a perpetual injunction of this nuisance of
the plaintiffs' bridge; and it was accordingly, at the hearing
granted by the court. Mr. Chancellor KENT, on that occasion, said,
'considering the proximity of the new bridge, and the facility that
every traveller has, by means of that bridge, and the road
connected with it, to shun the plaintiffs' gate, which he would
otherwise be obliged to pass, I cannot doubt, for a moment, that
the new bridge is a direct and immediate disturbance of the
plaintiffs' enjoyment of their privileges,' & c. 'The new road,
by its termini , created a competition most injurious to the
statute franchise; and becomes, what is deemed in law, in respect
to such franchise, a nuisance.' And after adverting to his own
language, already quoted, in Odgen v. Gibbons ,
privilege created by statute; all same doctrine applies to any
exclusive privilege created by statute; and such privileges come
within the equity and reason of the principle. No rival road,
bridge or ferry, or other establishment of a similar kind, and for
like purposes, can be tolerated so near to the other as materially
to affect or take away its custom. It operates as a fraud upon the
grant, and goes to defeat it. The consideration, by which
individuals are invited to expend money upon great, and expensive,
and hazardous public works, as roads and bridges; and to become
bound to keep them in constant and good repair; is the grant of an
exclusive toll. This right, thus purchased for a valuable
consideration, cannot be taken away by direct or indirect means,
devised for the purpose, both of which are equally unlawful.' Now,
when the learned chancellor here speaks of an exclusive privilege or franchise, he does not allude to any terms in the
statute grant, expressly giving such a privilege beyond the local
limits; for the statute contained no words to such an effect. The
grant, indeed, was, by necessary implication, exclusive, as to the
local limits, for the legislature could not grant any other bridge
in the same place with the same termini . It was to such a
grant of a franchise, exclusive in this sense, and in no other,
that his language applies. And he affirms the doctrine, in the most
positive terms, that such a grant carries with it a necessary right
to exclude all injurious competition, as an indispensable incident.
And his judgment turned altogether upon this doctrine. It is true,
that in this case, the defendants did not erect the new bridge,
under any legislative act. But that is not material in regard to
the point now under consideration. The point we are now considering
is, whether the grant of a franchise to erect a bridge or a ferry,
is confined to the local limits or termini , to the points
and planks of the bridge, or to the ferry-ways of the ferry. The
learned chancellor rejects such a doctrine, with the most pointed
severity of phrase. 'It operates (says he) as a fraud upon the
grant, and goes to defeat it.' The grant necessarily includes, 'a
right to an exclusive toll.' 'No rival road, bridge or ferry
can be tolerated, so near to the former as to affect or take away
its custom.' Now, if such be the true construction of the grant of
such a franchise, it is just as true a construction in relation to
the government, as in relation to private persons. It would be
absurd, to say, that the same grant means one think as to the
public, and an entirely opposite thing in relation to individuals.
If the right to an exclusive franchise or toll exists, it exists
from the nature and objects of the grant; and applies equally in
all directions. It would be repugnant to all notions of common
sense, as well as of justice, to say, that the legislature had a
right to commit a fraud upon its own grant. The whole reasoning of
the learned chancellor repudiates such a notion.

															But in what manner is the doctrine to be maintained, that the
franchise of a ferry is confined to the ferry-ways, and the
franchise of a bridge to the planks? It is said, that in Saville
11, it is laid down, 'that a ferry is in respect to the
landing-place, and not of the water; which water may belong to one,
and the ferry to another.' There can be no doubt of this doctrine.
A ferry must have local limits. It must have termini or
landing-places; and it may include only a right of passage over the
water. And is not this equally true, whether it be a ferry by
prescription, or by grant? If so, can there be any difference as to
the value of the exclusive right in cases of grant, or of
prescription? Does not each rest on its landing-places? But it is
added, in Saville, 'and in every ferry, the land on both sides of
the water ought to be (belong) to the owner of the ferry; for
otherwise he cannot land upon the other part.' Now, if by this is
meant, that the owner of the ferry must be the owner of the land,
it is not law; for all that is required, is, that he should have a
right or easement in the landing-places. So it was adjudged, in Peter v. Kendall , 6 Barn. & Cres. 703; and the dictum of Saville was there overruled. If the same principle
is to be applied (as I think it must be) to a bridge, then, as
there must be a subsisting right in the proprietors of Charles
River bridge to have such landing-places on the old ferry-ways,
there must be an assignment or grant implied of those ferry-ways by
Harvard College, to the proprietors for that purpose. But of this I
shall speak hereafter.

															One of the learned judges in the state court (who was against
the plaintiffs) admitted, that if any person should be forcibly
prevented fram passing over the plaintiffs' bridge, it would be an
injury, for which an action on the case would lie. I entirely
assent to this doctrine, which appears to me to be founded in the
most sound reasoning. It is supported by the case of the Bailiffs of Tewksbury v. Diston , 6 East 438, and by
the authorities cited by Lord ELLENBOROUGH on that occassion; and
especially by the doctrine of Mr. Justice POWELL, in Ashby v. White , 2 Ld. Raym. 948; and S.C.. 6 Mod. 49. But how can
this be, if the franchise of the bridge is confined to the mere
local limits or timbers of the bridge? If the right to take toll
does not commence or attach in the plaintiffs, except when the
passengers arrive on the bridge, how can an action lie for the
proprietors for obstructing passengers from coming to the bridge?
The remedy of the plaintiffs can only be co-extensive with their
rights and franchise. And if an action lies for an obstruction of
passengers, because it goes to impair the right of toll, and to
prevent its being earned, why does not the diversion of passengers
from the bridge by other means, equally give a cause of action,
since it goes, equally, nay more, to impair the right of the
plaintiffs to toll? If the legislature could not impair or destroy
its own grant, by blocking up all avenues to the bridge, how can it
possess the right to draw away all the tolls, by a free bridge,
which must necessarily withdraw all passengers? For myself, I
cannot perceive any ground upon which a right of action is
maintainable, for any obstruction of passengers, which does not
equally apply to the diversion of passengers. In each case, the
injury of the franchise is the same, although the means used are,
or may be, different.

															The truth is, that the reason why the grant of a franchise, for
example, of a ferry or of a bridge, though necessarily local in its
limits, is yet deemed to extend beyond those local limits, by
operation and intendment of law, is founded upon two great
fundamental maxims of law applicable to all grants. One is the
doctrine already alluded to, and laid down in Liford's Case ,
in 11 Co. 46, 52 a; lex est cuicunque, aliquis, quod concedit,
concedere videtur et id, sine quo res ipsa esse non potuit; or,
as it is expressed with pregnant brevity by Mr. Justice TWISDEN, in Pomfret v. Ricroft , 1 Saund. 321, 323, 'when the use
is granted, everything is granted by which the grantee may have and
enjoy the use.' See also Lord Darcy v. Askwith , Hob.
234; 1 Saund. 323, note 6, by Williams; Co. Litt. 56 a .
Another is, that wherever a grant is made for a valuable
consideration, which involves public duties and charges, the grant
shall be construed so as to make the indemnity co-extensive with
the burden. Qui sentit onus, sentire debet et commodum . In
the case of a ferry, there is a public charge and duty. The owner
must keep the ferry in good repair, upon the peril of an
indictment. He must keep sufficient accommodations for all
travellers, at all reasonable times. He must content himself with a
reasonable toll. Such is the jus publicum . In return, the
law will exclude all injurious competition, and deem every new
ferry a nuisance, which subtracts from him the ordinary custom and
toll. See Com. Dig. Piscary, B.; Ibid. Ferry. So strong is the duty
of the ferry-owner to the public, that it was held, in Paine v. Patrick , 3 Mod. 289, 294, that the ferry-owner could not
excuse himself from not keeping proper boats, even by showing that
he had erected a bridge more convenient for passengers. It would be
a fraud upon such a grant of a ferry, to divert the travel, and yet
to impose the burden. The right to take toll would, or might, be
useless, unless it should be exclusive within all the bounds of
injurious rivalship from another ferry. The franchise is,
therefore, construed to extend beyond the local limits, and to be
exclusive, within a reasonable distance; for the plain reason, that
it is indispensable to the fair enjoyment of the franchise and
right of toll. The same principle applies, without a shadow of
difference that I am able to perceive, to the case of a bridge; for
the duties are publici juris , and pontage and passage are
but different names for exclusive toll for transportation.

															In the argument at the present term, it has been further
contended, that at all events, in the state of Massachusetts, the
ancient doctrine of the common law in relation to ferries is not in
force, and never has been recognised; that all ferries in
Massachusetts are held at the mere will of the legislature, and may
be established by them and annihilated by them at pleasure; and of
course, that the grantees hold them durante bene placito of
the legislature. And in confirmation of this view of the subject,
certain proceedings of the colonial legislature have been relied
on, and especially those stated in the record, between the years
1629 and 1650; to the colonial act of 1641, against monopolies
(which is, in substance, like the statute of monopolies of the 21
James I., c. 3); and to the general colonial and provincial and
state statutes, regulating ferries, passed in 1641, 1644, 1646,
1647, 1695, 1696, 1710, 1719, 1781 and 1787; some of which contain
special provisions respecting Charlestown and Boston ferry.

															As to the proceedings of the colonial government, so referred
to, in my judgment, they establish no such conclusion. But some of
them, at least, are directly opposed to it. Thus, for example, in
1638, a ferry was granted to Garret Spencer, at Lynn, for two
years. In 1641, it was ordered, that they that put two boats
between Cape Ann and Annisquam, shall have liberty to take
sufficient toll, as the court shall think fit, for one-and-twenty
years. Could the colonial government have repealed these grants,
within the terms specified, at their pleasure? In 1648, Juhn Glover
had power given him to let a ferry over Neponset river, between
Dorchester and Braintree, to any person or persons, for the term of
seven years, &c.; or else to take it to himself and his heirs,
as his inheritance for ever; provided it be kept in such a place,
and at such a price, as may be most convenient for the country, and
pleasant to the general court. Now, if Glover, according to this
act, had taken this ferry to him and his heirs, as an inheritance,
could the colonial legislature have revoked it, at its pleasure? Or
rather, can it be presumed, that the colonial legislature intended
such a ferry, confessedly an inheritance, to be an estate held only
at will? It would be repugnant to all notions of legal
interpretation.

															In 1637, the general court ordered the ferry between Boston and
Charlestown to be let for three years. It was, afterwards, in 1640,
granted to Harvard College. From that time, down to 1785, it was
always held and claimed by the college, as its inheritance. But the
college never supposed, that it was not subject to the regulation
of the legislature, so far as the public interests were concerned.
The acts of 1650, 1654, 1694, 1696, 1710 and 1781, establish this.
But they show no more. That many of the ferries in Massachusetts
were held, and perhaps were always held, under mere temporary
licenses of the legislature, or of certain magistrates to whom they
were intrusted, is not denied. But it is as clear, that there were
other ferries, held under more permanent tenures. The colonial act
of 1644, authorized magistrates to pass ferries toll free, except
such ferries as are appropriated to any, or rented out, and are out
of the country's hands; and then it is 'ordered, that their
passages be paid by the country.' The act of 1694 excepts from its
operation, 'such ferries as are already stated and settled, either
by the court, or town to whom they appertain.' The colonial act of
1670, as an inducement to the town of Cambridge, or other persons,
to repair the bridge at Cambridge, or to erect a new one, declared,
'that this order (granting certain tolls) should continue in force,
so long a time as the said bridge is maintained serviceable and
safe for passage.' So that it is plain, that the colonial
legislature did contemplate both ferries and bridges to be held by
permanent tenures, and not to be revocable at pleasure.

															But to all the general laws respecting ferries, one answer may
be given, that their provisions are generally confined to the due
regulation of public ferries, and matters publici juris; and
so far as the public have rights which ought to be conforced and
protected, and which the legislature had a proper right to enforce
and protect by suitable laws. And in regard to matters not strictly
of this nature, the enactments may well apply to all such ferries
within the state as were held under the mere temporary license of
the state, and were revocable and controllable at pleasure by the
legislature, in which predicament a very large number of ferries in
the state were; and also to those ferries (among which Charlestown
ferry seems to have been) over which a modified legislative control
had been, at their original establishment, reserved. Beyond these
results, I am not prepared to admit, that these statutes either
had, or ever were supposed to have, any legitimate operation. And
before I should admit such a conclusion, I should require the
evidence of some solemn judgment of a court of justice, in
Massachusetts, to the very point.

															But the argument presses the doctrine to an extent which it is
impossible can be correct, if any principles respecting vested
rights exist, or have any recognition, in a free government. What
is it? That all ferries in Massachusetts are revocable and
extinguishable at pleasure. Suppose, then, the legislature of
Massachusetts, for a valuable consideration, should grant a ferry
from A. to B., to a grantee and his heirs, or to a grantee, for
forty years, or for life; will it be contended, that the
legislature can take away, revoke or annihilate that grant, within
the period? That it may make such a grant, cannot well be denied;
for there is no prohibition touching it in the constitution of
Massachusetts. That it can take away or resume such a grant, has
never yet been held by any judicial tribunal in that state. The
contrary is as well established, as to all sorts of grants, unless
an express power be reserved for the purpose, as any principle in
its jurisprudence. In the very case now before this court, every
judge of the supreme court of the state admitted, that the
legislature could not resume or revoke its charter to Charles River
bridge. Why not, if it could revoke its solemn grant of a ferry to
a private person, or to a corporation, during the stipulated period
of the grant? The legislature might just as well resume its grant
of the public land, or the grant of a turnpike, or of a railroad,
or of any other franchise, within the period stipulated by its
charter.

															The doctrine then is untenable. The moment that you ascertain
what the terms and stipulations of a grant of a ferry, or any other
franchise, are, that moment they are obligatory. They cannot be
gainsaid or resumed. So this court has said, in the case of Fletcher v. Peck , 6 Cranch 87; and so are the
unequivocable principles of justice, which cannot be overturned,
without shaking every free government to its very foundations. If,
then, the ferry between Charlestown and Boston was vested, in
perpetuity, in the corporation of Harvard College, it could not be
taken away, without its consent, by the legislature. It was a
ferry, so far withdrawn from the power of any legislation trenching
on its rights and franchises. It is assuming the very point in
controversy, to say, that the ferry was held at the mere pleasure
of the legislature. An exclusive claim, and possession and user , and taking of the profits thereof, for 150 years, by
the corporation of Harvard College, without interruption, was as
decisive evidence of its exclusive right to the franchise in
perpetuity, as the title deed of any man to his own estate. The
legislature of Massachusetts has never, so far as I know, breathed
a doubt on the point. All the judges of the state court admit the
exclusive right of Harvard College to the ferry, in the most
unequivocal terms. The argument, then, that the English doctrine as
to ferries has not been adopted, and is not in force in
Massachusetts, is not supported. For myself, I can only say, that I
have always understood that the English doctrine on this subject
constitutes a part of the common law of Massachusetts. But what is
most material to be stated, not one of the learned judges in the
state court doubted or denied the doctrine, though it was brought
directly before them; and they gave, seriatim , opinions
containing great diversities of judgment on other points.(a) It is
also fully established by the case of Chadwick v. Proprietors of Haverhill Bridge , already cited.

															But it is urged, that some local limits must be assigned to such
grants, and the court must assign them, for otherwise they would
involve the absurdity of being co-extensive with the range of the
river; for every other bridge or ferry must involve some diminution
of toll; and how much (it is asked) is necessary to constitute an
infringement of the right? I have already given an answer, in part,
to this suggestion. The rule of law is clear. The application of it
must depend upon the particular circumstances of each case.
Wherever any other bridge or ferry is so near, that it injures the
franchise, or diminishes the toll, in a positive and essential
decree, there it is a nuisance, and is actionable. It invades the
franchise, and ought to be abated. But whether there be such an
injury or not, is a matter, not of law, but of fact. Distance is no
otherwise important than as it bears on the question of fact. All
that is required, is, that there should be a sensible, positive
injury. In the present case, there is no room to doubt upon this
point, for the bridges are contiguous; and Warren bridge, after it
was opened, took away three-fourths of the profits of the travel
from Charles River bridge; and when it became free (as it now is),
it necessarily took away all the tolls, or all except an
unimportant and trivial amount.

															What I have said, however, is to be understood with this
qualification, that the franchise of the bridge has no assigned
local limits; but it is a simple grant of the right to errect a
bridge across a river, from one point to another, without being
limited between any particular villes or towns, or by other
local limits. In the case now before the court, I have already
stated, that my judgment is, that the franchise is merely to erect
a bridge between Charlestown and Boston; and therefore, it does
not, necessarily, exclude the legislature from making any other
grant, for the erecting of a bridge between Boston and any other
town. The exclusive right being between those towns, it only
precludes another legislative grant between those towns, which is
injurious to Charles River bridge. The case of Tripp v. Frank , 4 T. R. 666, is a clear authority for this doctrine.
It was there decided, that the grant of an exclusive ferry between
A. and B., did not exclude a ferry between A. and C. But the
argument of the plaintiff's counsel was tacitly admitted by the
court, that 'ferries, in general, must have some considerable
extent, upon which their right may operate; otherwise, the
exclusive privilege would be of no avail; that extent must be
governed by local circumstances.' And there is the greatest reason
for supporting such rights, because the owners of ferries are
bound, at their peril, to supply them to the public use; and are,
therefore, fairly entitled to the public advantage arising from
them.

															But it is said, if this is the law, what then is to become of
turnpikes and canals? Is the legislature precluded from authorizing
new turnpikes or new canals, simply because they cross the path of
the old ones, and incidentally diminish their receipt of tolls? The
answer is plain. Every turnpike has its local limits and local termini; its points of beginning and of end. No one ever
imagined, that the legislature might grant a new turnpike, with
exactly the same location and termini . That would be to
rescind its first grant. The grant of a turnpike between A. and B.,
does not preclude the legislature from the grant of a turnpike
between A. and C., even though it should incidentally intercept
some of the travel; for it is not necessarily a nuisance to the
former grant. The termini being different, the grants are or
may be substantially different. But if the legislature should grant
a second turnpike, substantially taking away the whole travel from
the first turnpike, between the same local points; then, I say, it
is a violation of the rights of the first turnpike. And the opinion
of Mr. Chancellor KENT, and all the old authorities on the subject
of ferries, support me in the doctrine.

															Some reliance has been placed upon the cases of Prince v. Lewis , 5 Barn. & Cres. 363, and Mosley v. Walker , 7 Ibid. 40, as impugning the reasoning. But it
appears to me, that they rather fortify than shake it. In the
former case, the king granted a market to A. and his heirs, in a
place within certain specified limits, and the grantee used part of
the limits for other purposes, and space enough was not ordinarily
left for the marketing. It was held, that the owner of the market
could not maintain an action against a person for selling
marketable goods in the neighborhood, without showing that, at the
time of the sale, there was room enough in the market for the
seller. This clearly admits the exclusive right of the owner, if
there is room enough in the market. The other case affirms the same
principle, as, indeed, it was before affirmed, in Mosley v. Chadwick , 7 Barn. & Cres. 47, note.

															But then again, it is said, that all this rests upon
implication, and not upon the words of the charter. I admit, that
it does; but I again say, that the implication is natural and
necessary. It is indispensable to the proper effect of the grant.
The franchise cannot subsist without it, at least, for any valuable
or practical purpose. What objection can there be to implications,
if they arise from the very nature and objects of the grant? If it
be indispensable to the full enjoyment of the right to take toll,
that it should be exclusive within certain limits, is it not just
and reasonable, that it should be so construed? If the legislative
power to errect a new bridge would annihilate a franchise already
granted, is it not, unless expressly reserved, necessarily
excluded, by intendment of law? Can any reservations be raised by
mere implication, to defeat the operation of a grant, especially,
when such a reservation would be co-extensive with the whole right
granted, and amount to the reservation of a right to recall the
whole grant.

															Besides, in this very case, it is admitted on all sides, that
from the defective language and wording of the charter, no power is
directly given to the proprietors to erect the bridge; and yet it
is agreed, that the power passes by necessary implication from the
grant, for otherwise it would be utterly void. The argument,
therefore, surrenders the point as to the propriety of making
implications; and reduces the question to the mere consideration of
what is a necessary implication. Now, I would willingly put the
whole case upon this point, whether it is not as indispensable to
the fair and full operation of the grant, that the plaintiffs
should be secure in the full enjoyment of their right to tolls,
without disturbance or diversion; as that they should have the
power to erect the bridge. If the tolls may be all swept away, by a
contiguous free bridge, erected the next day, can it be said, in
any sense, that the object of the franchise is obtained? What does
the sound logic of the common law teach us on this point? If a
grant, even of the crown, admits of two constructions, one of which
will defeat, and the other will promote and secure, the fair
operation of the grant; the latter is to be followed.

															The truth is, that the whole argument of the defendants turns
upon an implied reservation of power in the legislature to defeat
and destroy its own grant. The grant, construed upon its own terms,
upon the plain principles of construction of the common law, by
which alone it ought to be judged, is an exclusive grant. It is the
grant of a franchise, publici juris , with a right of tolls;
and in all such cases, the common law asserts the grant to be
exclusive, so as to prevent injurious competition. The argument
seeks to exclude the common law from touching the grant, by
implying an exception in favor of the legislative authority to make
any new grant. And let us change the position of the question as
often as we may, it comes to this, as a necessary result-that the
legislature has reserved the power to destroy its own grant, and
annihilate the right of pontage of the Charles River bridge. If it
stops short of this exercise of its power, it is its own choice,
and not its duty. Now, I maintain, that such a reservation is
equivalent to a power to resume the grant; and yet it has never
been for a moment contended, that the legislature was competent to
resume it.

															To the answer already given to the objection, that, unless such
a reservation of power exists, there will be a stop put to the
progress of all public improvements; I wish, in this connection, to
add, that there never can any such consequence follow upon the
opposite doctrine. If the public exigencies and interests require
that the franchise of Charles River bridge should be taken away, or
impaired, it may be lawfully done, upon making due compensation to
the proprietors. 'Whenever,' says the constitution of
Massachusetts, 'the public exigencies require that the property of
any individual should be appropriated to public uses, he shall
receive a reasonable compensation therefor;' and this franchise is
property-is fixed determinate property. We have been told, indeed,
that where the damage is merely consequential (as, by the
erection of a new bridge, it is said that it would be), the
constitution does not entitle the party to compensation; and Thruston v. Hancock , 12 Mass. 220, and Callender v. Marsh , 1 Pick. 418, are cited in support
of the doctrine. With all possible respect for the opinions of
others, I confess myself to be among those who never could
comprehend the law of either of those cases; and I humbly continue
to doubt, if, upon principle or authority, they are easily
maintainable; and I think my doubts fortified by the recent English
decisions. But, assuming these cases to be unquestionable, they do
not apply to a case like the prevent, if the erection of such a new
bridge is a violation of the plaintiffs' franchise. That franchise,
so far as it reaches, is private property; and so far as it is
injured, it is the taking away of private property. Suppose, a man
is the owner of a mill, and the legislature authorizes a diversion
of the watercourse which supplies it, whereby the mill is injured
or ruined; are we to be told, that this is a consequential injury,
and not within the scope of the constitution? If not within the
scope of the constitution, it is, according to the fundamental
principles of a free government, a violation of private rights,
which cannot be taken away, without compensation. The case of Gardner v. Village of Newburgh , 2 Johns. Ch. 139,
would be a sufficient authority to sustain this reasoning; if it
did not stand upon the eternal principles of justice, recognised by
every government which is not a pure despotism.

															Not a shadow of authority has been introduced, to establish the
position of the defendants, that the franchise of a toll-bridge is
confined to the planks of the bridge; and yet it seems to me, that
the onus probandi is on them; for all the analogies of the
common law are against them. They are driven, indeed, to contend,
that the same principles apply to ferries, which are limited to the
ferry-ways, unless some prescription has given them a more
extensive range. But here, unless I am entirely mistaken, they have
failed to establish their position; as I understand the
authorities, they are, unequivocally, the other way. Are we then to
desert the wholesome principles of the common law, the bulwark of
our public liberties, and the protecting shield of our private
property, and assume a doctrine, which substantially annihilates
the security of all franchises affected with public easements?

															But it is said, that if the doctrine contended for be not true,
then every grant to a corporation becomes, ipso facto , a
monopoly or exclusive privilege. The grant of a bank, or of an
insurance company, or of a manufacturing company, becomes a
monopoly, and excludes all injurious competition. With the greatest
deference and respect for those who press such an argument, I
cannot but express my surprise that it should be urged. As long ago
as the case in the Year Book, 22 Hen. VI. 14, the difference was
pointed out in argument, between such grants as involve public
duties and public matters for the common benefit of the people, and
such as are for mere private benefit, involving no such
consideration. If a bank, or insurance company, or manufacturing
company, is established in any town, by an act of incorporation; no
one ever imagined that the corporation was bound to do business, to
employ its capital, to manufacture goods, to make insurance. The
privilege is a mere private corporate privilege, for the benefit of
the stockholders, to be used or not, at their own pleasure; to
operate when they please; and to stop when they please. Did any man
ever imagine, that he had a right to have a note discounted by a
bank, or a policy underwritten by an insurance company? Such grants
are always deemed privati juris . No indictment lies for a non-user . But in cases of ferries and bridges, and other
franchises of a like nature (as has been shown), they are affected
with a jus publicum . Such grants are made for the public
accommodation; and pontage and passage are authorized to be levied
upon travellers (which can only be by public authority); and in
return, the proprietors are bound to keep up all suitable
accommodations for tra vellers, under the penalty of indictment for
their neglect.

															The tolls are deemed an equivalent for the burden, and are
deemed exclusive, because they might not otherwise afford any just
indemnity. In the very case at bar, the proprietors of Charles
River bridge (as we have seen) are compellable to keep their draws
and bridge in good repair, during the period of seventy years; to
pay an annuity to Harvard College; to give all reasonable
accommodations to the public travel; and if they do not, they may
be grievously amerced. The burdens being exclusively on them, must
not the tolls granted by way of remuneration (I repeat it); must
they not be equally exclusive, to insure an indemnity? Is there any
analogy in such a case, to the case of a bank, or an insurance
company, or a manufacturing company? The case of Jackson v. Lamphire , 3 Pet. 280, contains no doctrine which, in the
slighest degree, interferes with that which I have been endeavoring
to establish in the present case. In that decision, I believe that
I concurred; and I see no reason now to call in question the
soundness of that decision. That case does not pretend to inculcate
the doctrine, that no implication can be made, as to matters of
contract, beyond the express terms of a grant. If it did, it would
be in direct conflict with other most profoundly considered
adjudications of this court. It asserted only, that the grant in
that case carried no implication that the grantee should enjoy the
land therein granted, free from any legislative regulations to be
made, in violation of the constitution of the state. Such an
implication, so broad and so unmeasured, which might extend far
beyond any acts which could be held, in any just sense, to revoke
or impair the grant, could, by no fit reasoning, be deduced from
the nature of the grant. What said the court on that occasion? 'The
only contract made by the state, is a grant to J. C., his heirs and
assigns, of the land in question. The patent contains no covenant
to do or not to do any further act in relation to the land; and we
do not, in this case, feel at liberty to create one by implication.
The state has not, by this act, impaired the force of the grant. It
does not profess or attempt to take the land from the assigns of
C., and give it to one not claiming under him. Neither does the
award produce that effect. The grant remains in full force; the
property conveyed is held by the grantee; and the state asserts no
claim to it.' But suppose, the reverse had been the fact. Suppose,
that the state had taken away the land, and granted it to another;
or asserted its own right otherwise to impair the grant; does it
not follow, from this very reasoning of the court, that it would
have been held to have violated the implied obligations of the
grant? Certainly, it must have been so held, or the court would
have overturned its own most solemn judgments in other cases. Now,
there is not, and cannot be, any real distinction between a grant
of land and a grant of franchises. The implication, in each case,
must be the same, viz., that the thing granted shall not be resumed
or impaired by the grantor.

															It has been further argued, that even if the charter of the
Charles River bridge does imply such a contract on the part of the
legislature, as is contended for, it is void for want of authority
in the legislature to make it; because it is a surrender of the
right of eminent domain, intrusted to the legislature and its
successors, for the benefit of the public, which is not at liberty
to alienate. If the argument means no more, than that the
legislature, being intrusted with the power to grant franchises,
cannot, by contract, agree to surrender or part with this power,
generally, it would be unnecessary to consider the argument; for no
one supposes that the legislature can rightfully surrender its
legislative power. If the argument means no more, than that the
legislature, having the right, by the constitution, to take private
property (among which property are franchises) for public purposes,
cannot divest itself of such a right, by contract, there would be
as little reason to contest it. Neither of these cases is like that
before the court. But the argument (if I do not misunderstand it)
goes further, and denies the right of the legislature to make a
contract granting the exclusive right to build a bridge between
Charlestown and Boston, and thereby taking from itself the right to
grant another bridge between Charlestown and Boston, at its
pleasure; although the contract does not exclude the legislature
from taking it for public use, upon making actual compensation;
because it trenches upon the sovereign right of eminent domain.

															It is unnecessary to consider, whether the phrase 'eminent
domain,' in the sense in which it is used in the objection, is
quite accurate. The right of eminent domain is usually understood
to be the ultimate right of the sovereign power to appropriate, not
only the public property, but the private property of all citizens
within the territorial sovereignty, to public purposes. Vattel (b.
1, c. 20, § 244) seems so to have understood the terms; for he
says, that the right, which belongs to the society, or the
sovereign, of disposing, in case of necessity, and for the public
safety, of all the wealth (the property) contained in the state, is
called the 'eminent domain.' And he adds, that it is placed among
the prerogatives of majesty; which, in another section (b. 1, c. 4,
§ 45), he defines to be, 'all the prerogatives without which the
sovereign command, or authority, could not be exerted in the manner
most conducive to the public welfare.' The right of 'eminent
domain,' then, does not comprehend all, but only is among the
prerogatives of majesty. But the objection uses the words in a
broader sense, as including what may be deemed the essential and
ordinary attributes of sovereignty; such as the right to provide
for the public welfare, to open highways, to build bridges, and,
from time to time, to make grants of franchises for the public
good. Without doubt, these are proper attributes of sovereignty,
and prerogatives resulting from its general nature and functions.
And so Vattel considers them in the passage cited at the bar: b. 1,
c. 9, § 100-1. But they are attributes and prerogatives of
sovereignty only, and can be exercised only by itself, unless
specially delegated.

															But, without stopping to examine into the true meaning of
phrases, it may be proper to say, that however extensive the
prerogatives and attributes of sovereignty may theoretically be, in
free governments, they are universally held to be restrained within
some limits. Although the sovereign power in free governments may
appropriate all the property, public as well as well as private,
for public purposes, making compensation therefor; yet it has never
been understood, at least, never in our republic, that the
sovereign power can take the private property of A. and give it to
B., by the right of 'eminent domain;' or, that it can take it at
all, except for public purposes; or, that it can take it for public
purposes, without the duty and responsibility of making
compensation for the sacrifice of the private property of one, for
the good of the whole. These limitations have been held to be
fundamental axioms in free governments like ours; and have
accordingly received the sanction of some of our most eminent
judges and jurists. Vattel himself lays them down, in discussing
the question of the right of eminent domain, as among the
fundamental principles of government, binding even upon the
sovereignty itself. 'If,' says he, 'the nation itself disposes of
the public property, in virtue of this eminent domain, the
alienation is valid, as having been made with a sufficient power.
When it disposes, in like manner, in a case of necessity, of the
possessions (the property) of a community, or of an individual, the
alienation will be valid, for the same reason. But justice demands,
that this community or this individual be recompensed out of the
public money; and if the treasury is not able to pay, all the
citizens are obliged to contribute to it.' Vatt. b. 1, c. 20, §
244. They have also been incorporated into most of our state
constitutions, and into that of the United States; and, what is
most important to the present argument, into the state constitution
of Massachusetts. So long as they remain in those constitutions,
they must be treated as limitations imposed by the sovereign
authority upon itself; and a fortiori , upon all its
delegated agents. The legislature of Massachusetts is, in no just
sense, sovereign. It is but the agent, with limited authority, of
the state sovereignty; and it cannot rightfully transcend the
bounds fixed in the constitution. What those limits are, I shall
presently consider. It is but justice to the argument, to say, that
I do not understand it to maintain, that the legislature ought not,
in all cases, as a matter of duty, to give compensation, where
private property or franchises are taken away. But that the
legislature is the final judge as to the time, the manner and the
circumstances, under which it should be given or withheld; whether
when the property is taken, or afterwards; and whether it is, or is
not, a case for compensation at all.

															But let us see what the argument is, in relation to sovereignty
in general. It admits, that the sovereign power has, among its
prerogatives, the right to make grants, to build bridges, to erect
ferries, to lay out highways; and to create franchises for public
and private purposes. If it has a right to make such grants, it
follows, that the grantees have a right to take, and to hold, these
franchises. It would be a solecism, to declare that the sovereign
power could grant, and yet no one could have a right to take. If it
may grant such franchises, it may define and limit the nature and
extent of such franchises; for, as the power is general, the
limitations must depend upon the good pleasure and discretion of
the sovereign power in making the particular grant. If it may
prescribe the limits, it may contract that these limits shall not
be invaded by itself or by others.

															It follows, from this view of the subject, that if the sovereign
power grants any franchise, it is good and irrevocable, within the
limits granted, whatever they may be; or else, in every case, the
grant will be held only during pleasure; and the identical
franchise may be granted to any other person, or may be revoked at
the will of the sovereign. This latter doctrine is not pretended;
and, indeed, is unmaintainable in our systems of free government.
If, on the other hand, the argument be sound, that the sovereign
power cannot grant a franchise, to be exclusive within certain
limits, and cannot contract not to grant the same, or any like
franchise, within the same limits, to the prejudice of the first
grant, because it would abridge the sovereign power in the exercise
of its right to grant franchises; the argument applies equally to
all grants of franchises, whether they are broad or narrow: for, pro tanto , they do abridge the exercise of the sovereign
power to grant the same franchise within the same limits. Thus, for
example, if the sovereign power should expressly grant an exclusive
right to build a bridge over navigable waters, between the towns of
A. and B., and should expressly contract with the grantees, that no
other bridge should be built between the same towns; the grant
would, upon the principles of the argument, be equally void in
regard to the franchise, within the planks of the bridge, as it
would be in regard to the franchise, outside of the planks of the
bridge; for, in each case, it would, pro tanto , abridge or
surrender the right of the sovereign to grant a new bridge within
the local limits. I am aware, that the argument is not pressed to
this extent; but it seems to me a necessary consequence flowing
from it. The grant of the franchise of a bridge, twenty feet wide,
to be exclusive within those limits, is certainly, if obligatory,
an abridgment or surrender of the sovereign power to grant another
bridge within the same limits; if we mean to say, that every grant
that diminishes the things upon which that power can rightfully
act, is such an abridgment. Yet the argument admits, that within
the limits and planks of the bridge itself, the grant is exclusive;
and cannot be recalled. There is no doubt, that there is a
necessary exception in every such grant, that if it is wanted for
public use, it may be taken by the sovereign power for such use,
upon making compensation. Such a taking is not a violation of the
contract; but it is strictly an exception, resulting from the
nature and attributes of sovereignty; implied from the very terms,
or at least, acting upon the subject-matter of the grant, suo
jure .

															But the legislature of Massachusetts is, as I have already said,
in no just sense, the sovereign of the state. The sovereignty
belongs to the people of the state, in their original character as
an independent community; and the legislature possesses those
attributes of soverignty, and those only, which have been delegated
to it by the people of the state, under its constitution. There is
no doubt, that among the powers so delegated to the legislature, is
the power to grant the franchises of bridges and ferries, and
others of a like nature. The power to grant is not limited by any
restrictive terms in the constitution; and it is, of course,
general and unlimited, as to the terms, the manner, and the extent
of granting franchises. These are matters resting in its sound
discretion; and having the right to grant, its grantees have a
right to hold, according to the terms of their grant, and to the
extent of the exclusive privileges conferred thereby. This is the
necessary result of the general authority, upon the principles
already stated.

															But this doctrine does not stand upon general reasoning alone.
It is directly and positively affirmed by all the judges of the
state court (the true and rightful expositors of the state
constitution), in this very case. All of them admit, that the grant
of an exclusive franchise of this sort, made by the legislature, is
absolutely obligatory upon the legislature, and cannot be revoked
or resumed; and that it is a part of the contract, implied in the
grant, that it shall not be revoked or resumed; and that, as a
contract, it is valid to the extent of the exclusive franchise
granted. So that the highest tribunal in the state which is
entitled to pass judgment on this very point, has decided against
the soundness of the very objection now stated; and has affirmed
the validity and obligation of such a grant of the franchise. The
question, among the learned judges, was not, whether the grant was
valid or not; for all of them admitted it to be good and
irrevocable. But the question was, what was, in legal construction,
the nature and extent of the exclusive franchise granted. This is
not all. Although the legislature have an unlimited power to grant
franchises, by the constitution of Massachusetts; they are not
intrusted with any general sovereign power to recall or resume
them. On the contrary, there is an express prohibition in the bill
of rights, in that constitution, restraining the legislature from
taking any private property, except upon two conditions; first,
that it is wanted for public use; and secondly, that due
compensation is made. So that the power to grant franchises, which
are confessedly property, is general; while the power to impair the
obligation of the grant, and to resume the property, is limited. An
act of the legislature transcending these bounds, is utterly void;
and so it has been constantly held by the state judges. The same
doctrine has been maintained by this court, on various occasions;
and especially, in Fletcher v. Peck , 6 Cranch 146;
and in Trustees of Dartmouth College v. Woodward , 4
Wheat. 518.

															Another answer to the argument has been, in fact, already given.
It is, that by the grant of a particular franchise, the legislature
does not surrender its power to grant franchises, but merely parts
with its power to grant the same franchise; for it cannot grant
that which it has already parted with. Its power remains the same;
but the thing on which it can alone operate, is disposed of. It
may, indeed, take it again for public uses, paying a compensation.
But it cannot resume it, or grant it to another person, under any
other circumstances, or for any other purposes. In truth, however,
the argument itself proceeds upon a ground which the court cannot
act upon or sustain. The argument is, that if the state legislature
makes a grant of a franchise exclusive, and contracts that it shall
remain exclusive, within certain local limits, it is an excess of
power, and void as an abridgment or surrender of the right of
sovereignty, under the state constitution. But this is a point over
which this court has no jurisdiction. We have no right to inquire,
in this case, whether a state law is repugnant to its own
constitution; but only whether it is repugnant to the constitution
of the United States. If the contract has been made, we are to say,
whether its obligation has been impaired; and not to ascertain
whether the legislature could rightfully make it. Such was the
doctrine of this court in the case of Jackson v. Lamphire , already cited. 3 Pet. 280-9. But the conclusive
answer is, that the state judges have already settled that point,
and held the present grant a contract; to be valid to the extent of
the exclusive limits of the grant, whatever they are.

															To sum up, then, the whole argument on this head: I maintain,
that, upon the principles of common reason and legal
interpretation, the present grant carries with it a necessary
implication, that the legislature shall do no act to destroy or
essentially to impair the franchise; that (as one of the learned
judges of the state court expressed it) there is an implied
agreement that the state will not grant another bridge between
Boston and Charlestown, so near as to draw away the custom from the
old one; and 'as another learned judge expressed it) that there is
an implied agreement of the state to grant the undisturbed use of
the bridge and its tolls, so far as respects any acts of its own,
or of any persons acting under its authority. In other words, the
state impliedly contracts not to resume its grant, or to do any act
to the prejudice or destruction of its grant. I maintain, that
there is no authority or principle established in relation to the
construction of crown grants, or legislative grants, which does not
concede and justify this doctrine. Where the thing is given, the
incidents, without which it cannot be enjoyed, are also given; ut res magis valeat quam pereat . I maintain, that a
different doctrine is utterly repugnant to all the principles of
the common law, applicable to all franchises of a like nature; and
that we must overturn some of the best securities of the rights of
property, before it can be established. I maintain, that the common
law is the birthright of every citizen of Massachusetts, and that
he holds the title deeds of his property, corporeal and
incorporeal, under it. I maintain, that under the principles of the
common law, there exists no more right in the legislature of
Massachusetts, to erect the Warren bridge, to the ruin of the
franchise of the Charles River bridge, than exists to transfer the
latter to the former, or to authorize the former to demolish the
latter. If the legislature does not mean in its grant to give any
exclusive rights, let it say so, expressly, directly, and in terms
admitting of no misconstruction. The grantees will then take at
their peril, and must abide the results of their overweening
confidence, indiscretion and zeal.

															My judgment is formed upon the terms of the grant, its nature
and objects, its designs and duties; and, in its interpretation, I
seek for no new principles, but I apply such as are as old as the
very rudiments of the common law.

															But if I could persuade myself that this view of the case were
not conclusive upon the only question before this court, I should
rely upon another ground, which, in may humble judgment, is equally
decisive in favor of the plaintiffs. I hold, that the plaintiffs
are the equitable assignees (during the period of their ownership
of the bridge) of the old ferry, belonging to Harvard College,
between Charlestown and Boston, for a valuable consideration; and
as such assignees, they are entitled to an exclusive right to the
ferry, so as to exclude any new bridge from being erected between
those places, during that period. If Charles River bridge did not
exist, the erection of Warren bridge would be a nuisance to that
ferry, and would, in fact, ruin it. It would be exactly the case of Chadwick v. Proprietors of the Haverhill Bridge; which, notwithstanding all I have heard to the contrary, I deem of
the very highest authority. But, independently of that case, I
should arrive at the same conclusion, upon general principles. The
general rights and duties of the owners of the ferries, at the
common law, were not disputed by any of the learned judges in the
state court, to be precisely the same in Massachusetts, as in
England. I shall not, therefore, attempt to go over that ground,
with any further illustrations than what have already, in another
part of this opinion, been suggested. I cannot accede to the
argument, that the ferry was extinguished by operation of law, by
the grant of the bridge, and the acceptance of the annuity. In my
judgment, it was indispensable to the existence of the bridge, as
to its termini , that the ferry should be deemed to be still
a subsisting franchise; for otherwise, the right of landing on each
side would be gone. I shall not attempt to go over the reasoning,
by which I shall maintain this opinion; as it is examined with
great clearness and ability by Mr. Justice PUTNAM, in his opinion
in the state court, to which I gladly refer, as expressing mainly
all my own views on this topic. Indeed, there is, in the whole of
that opinion, such masculine vigor, such a soundness and depth of
learning, such a forcible style of argumentation and illustration,
that in every step of my own progress, I have sedulously availed
myself of his enlightened labors. For myself, I can only say, that
I have as yet heard no answer to his reasoning; and my belief is,
that in a judicial sense, it is unanswerable.

															Before I close, it is proper to notice, and I shall do it
briefly, another argument strongly pressed at the bar against the
plaintiffs; and that is, that the extension of the term of the
franchise of the plaintiffs for thirty years, by the act of 1792
(erecting the West Boston bridge, between Boston and Cambridge),
and the acceptance thereof by the plaintiffs, amounted to a
surrender or extinguishment of their exclusive franchise, if they
ever had any, to build bridges over Charles river; so that they are
barred from now setting it up against the Warren bridge. In my
judgment, there is no foundation whatsoever, either in law, or in
the facts, to sustain this objection. If any legitimate conclusion
be deducible from the terms of that act, it is, that the
plaintiffs, if they had claimed any such exclusive right over the
whole river, would, by their acceptance of the new term of years,
have been estopped to claim any damages done to their franchise by
the erection of West Boston bridge; and that their consent must be
implied to its erection. But there is no warrant for the objection,
in any part of the language of the act. The extension of the term
is not granted upon any condition whatsoever. No surrender of any
right is asked, or required. The clause extending the term,
purports, in its face, to be a mere donation or bounty of the
legislature, founded on motives of public liberality and policy. It
is granted expressly as an encouragement to enterprise, and as a
compensation for the supposed diminution of tolls, which West
Boston bridge would occasion to Charles River bridge; and in no
manner suggests any sacrifice or surrender of right whatsoever, to
be made by the plaintiffs. In the next place, the erection of West
Boston bridge was no invasion, whatsoever, of the franchise of the
plaintiffs. Their right, as I have endeavored to show, was limited
to a bridge, and the travel between Charlestown and Boston; and did
not extend beyond those towns. West Boston bridge was between
Boston and Cambridge, at the distance of more than a mile by water,
and by land of nearly three miles; and as the roads then ran, the
line of travel for West Boston bridge would scarcely ever, perhaps
never, approach nearer than that distance to Charles River bridge.
The grant, therefore, could not have been founded in any notion of
any surrender or extinguishment of the exclusive franchise of the
plaintiffs; for it did not reach to such an extent; it did not
reach Cambridge, and never had reached it.

															As to the report of the committee, on the basis of which the
West Boston bridge was granted, it has, in my judgment, no legal
bearing on the question. The committee say, that they are of
opinion, that the act of 1785 did not confer 'an exclusive grant of
the right to build over the waters of Charles river.' That is true;
and it is equally true, that the plaintiffs never asserted, or
pretended to have, any such right. In their remonstrance against
the erection of West Boston bridge, they assert no such right; but
they put themselves upon mere equitable considerations, addressing
themselves to the sound discretion of the legislature. If they had
asserted such a broad right, it would not justify any conclusion,
that they were called upon to surrender, or did surrender, their
real and unquestionable rights. The legislature understood itself
to be granting a boon; and not making a bargain or asking a favor.
It was liberal, because it meant to be just, in a case of
acknowledged hazard, and of honorable enterprise, very beneficial
to the public. To suppose, that the plaintiffs meant to surrender
their present valuable and exclusive right of franchise for
thirty-four remaining years, and to put it in the power of the
legislature, the next day, or the next year, to erect a bridge,
toll or free, which by its contiguity should ruin theirs, or take
away all their profits; is a supposition, in my judgment, truly
extravagant, and without a scintilla of evidence to support
it. The burdens of maintaining the bridge were to remain; the
payment of the annuity to Harvard College was to remain: and yet,
upon this supposition, the extension of the term of their charter,
granted in the shape of a bounty, would amount to a right to
destroy the franchise the next day, or the next hour, at the
pleasure of the legislature. I cannot perceive, upon what ground
such an implication can be made; an implication, not arising from
any words or intent expressed on the face of the act, or fairly
inferrible from its purposes; and wholly repugnant to the avowed
objects of the grant, which are to confer a benefit, and not to
impose an oppressive burden, or create a ruinous competition.

															Upon the whole, my judgment is, that the act of the legislature
of Massachusetts granting the charter of Warren Bridge, is an act
impairing the obligation of the prior contract and grant to the
proprietors of Charles River bridge; and, by the constitution of
the United States, it is, therefore, utterly void. I am for
reversing the decree to the state court (dismissing the bill); and
for remanding the cause to the state court for further proceedings,
as to law and justice shall appertain.

															THOMPSON, Justice.

															The opinion delivered by my brother, Mr. Justice STORY, I have
read over and deliberately considered. On this full consideration,
I concur entirely in all the principles and reasonings contained in
it; and I am of opinion, the decree of the supreme judicial court
of Massachusetts should be reversed.

															THIS cause came on to be heard, on the transcript of the record
from the supreme judicial court, holden in and for the county of
Suffolk, in the commonwealth of Massachusetts, and was argued by
counsel: On consideration whereof, it is ordered, adjudged and
decreed by this court, that the decree of the said supreme judicial
court in this cause be and the same is hereby affirmed, with
costs.