Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge

36 U.S. 420 (____)

11 Pet. 420

THE PROPRIETORS OF THE CHARLES RIVER BRIDGE, PLAINTIFFS IN ERROR

v.

THE PROPRIETORS OF THE WARREN BRIDGE, AND OTHERS.

Supreme Court of United States.

*428 The case was argued by Mr. Dutton and Mr. Webster, for the plaintiffs in error: and by Mr. Greenleaf and Mr. Davis, for the defendants.

Mr. Dutton for the plaintiffs.

*536 Mr. Chief Justice TANEY 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, as 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 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 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 *537 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 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 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 two hundred pounds, 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 constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had then been so far *538 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 the superintendents 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 proproprietors 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 received 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, *539 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 2 Peters, 413 ; Satterlee v. Mathewson; 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, *540 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 reaffirmed 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 *541 cannot enlarge the 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 *542 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 an 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 ensure their success. They place their application entirely on considerations of public interest and public convenience, and the superior advantages of a communication 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 charter 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 forever 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 *543 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 two hundred pounds 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 in Massachusetts, in 1650, may have granted to a justly favoured 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 *544 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 experienced 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 2 Barn. & Adol. 793, in the case of the Proprietors of the Stourbridge Canal against Wheely and others, 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 favour of the public, and the plaintiffs can claim nothing that is not clearly given them by the act." And the doctrine thus laid down is 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 *545 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 labours, 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 any thing 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 unfavourable 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 favour 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 *546 these privileges by implication; and construing a statute more unfavourably to the public, and to the rights of the 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, in 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 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 his grantee, and the state asserts no claim to it."

The same rule of construction is also stated in the case of Beatty v. The Lessee of Knowles, 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 & Pittmann, 4 Pet. 514 ; and 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 *547 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 favour 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 *548 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 subjects the charter is silent; and nothing *549 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 complaint. 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 not 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 the Providence Bank. The whole community are interested in this inquiry, and they have a right to require that the power of promoting their *550 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 seventh 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 *551 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, rail roads have rendered the turnpike roads on the same line of travel so entirely useless, that the *552 franchise of the turnpike corporation is not worth preserving. Yet in none of these cases have the corporations 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 should 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 rail roads 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 *553 upon this Court to put down the improvements which have taken their place. The millions of property which have been invested in rail roads 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 rail road 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.

*554 Mr. Justice M`LEAN.

This suit in chancery was commenced in the supreme 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, two hundred pounds 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 *555 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 one hundred and forty 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 ways; 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 prescribed 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; so soon as the bridge was constructed, the use of the ferry ceased; *556 and the college has regularly received from the complainants the annuity of two hundred pounds. 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 Petersdorf, 53; 13 Vin. 513; Willes' Rep. 512, note; 12 East, 330; 6 Barn. & Cres. 703; Year Book, Hen. 6, 22; Rolles' Ab. 140; Fitz. 428. n; Com. Digest, Market, C. 2; Piscary, B. Action on the Case, A; 3 Blk. 219; Nott & M'Cord, 387; 2 Saund. 172; 6 Mod. 229; 2 Vent. 344; 3 Levinz. 220; Com. Dig. Patent, F. 4, 5, 6, 7; 2 Saund. 72, n. 4; 2 Inst. 406; Chit. Pre. 12 chap. 3; 10 chap. 2; 3 Salk. 198; Willes, 512; 4 Term, 666; Saund. 114; Croke, E. 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.

*557 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 obligations 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 favourable 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 favour of the king, or on a consideration, are more liberally construed. Grants of limited political powers are construed strictly. Com. Dig. tit. Grant, E. 5; 2 Dane's Ab. 683; 1 Nott & M`Cord, Stark v. M`Gowan; Pop. 79; Moore, 474; 8 Coke, 92; 6 Barn. & Cres. 703; 5 Ib. 875; 3 M. & S. 247; Hargrave, 18 to 23; Angel on Tide Water, 106, 7; 4 Burr. 2161; 4 Durn. & East. 439; 2 Bos. *558 & Pul. 472; 1 Term, 669; 1 Con. Rep. 382; 17 Johns. 195 ; 8 M. & S. 247; 6 Mass. 437 ; 1 Mass. 231 ; 17 Mass. 289 ; Angel, 108; 4 Mass. 140, 522 ; Bac. Pre. T. 2; Plow. 336, 7; 9 Coke, 30; 1 Vent. 409; Croke J. 179; Dyer, 30; Saville, 132; 10 Coke, 112; Com. Dig. Grant, 9, 12; Bae. 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 utility, 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 favour 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 *559 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 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 terms, 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 Beatty v. The Lessee of Knowles, 4 Peters, 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 any thing 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.

*560 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, nor 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 had 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 *561 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 any thing which should be deemed requisite for the public accommodation.

In support of the complainants' right, in this respect, a case is referred to in 7 Barn. and 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. and Cressw. 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 *562 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 other 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 realised 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 reconstruction 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, *563 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 new 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 my 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 cognizance 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 *564 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?

*565 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, nor 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 two hundred pounds 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 *566 as distant from the abutments of the bridge as the Warren Bridge. 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, no 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 any thing 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 Peters, 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 *567 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 is 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 the condition of making compensation.

In the case of Chadwick v. The Proprietors of the Haverhill Bridge, reported in Dane's Abridgment, it appears that a bridge was built under a charter within forty rods 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; *568 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 Vattell, ch. 9, sec. 101; 4 Litt. R. 327; Domat. Book 1, tit. 6, sec. 1; 17 Vin. 88; Chitt. on Prer. 81; 10 Price, 350; Puff. *569 ch. 5, sec. 7; 5 Cowen, 558; 6 Wheat. 593 ; 20 Johns. R. 25; Hargrave's Law Tracts, 36; 4 Gill. and Johns. 1.

If this doctrine be sustainable, as applied to this case, it is not perceived why an exception should be made in favour 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 nc 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 *570 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 public 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 rail road, authorized by la

By the charter of the Warren Bridge, so 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. *571 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, a hundred pounds. 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 *572 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 et al. v. Bank 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 it 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, *573 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. *574 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 may 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 *575 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 *576 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 any thing 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 *577 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 intend 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 impair 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 any thing 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 *578 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 favour 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 *579 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 any 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 well-being of every sovereign state, and which is always exercised under its own rules?

Had an adequate compensation been made to the complainants, *580 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 Peters, 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, *581 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 no where 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 Satterlee, 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 affect 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 not 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 Sturgis v. Crowninshield, 4 Cond. Rep. 409, had a direct bearing upon the contract. *582 The question was, whether under the bankrupt law of New York a debtor was discharged from his obligation by a surrender of his property: and so in the case of The Trustees of Dartmouth College, v. Woodward, 4 Cond. Rep. 426, 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 Terret and others v. Taylor and others, 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 et al. 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 states; and control, to a fearful extent, the exercise of their powers.

*583 The spirit of internal improvement pervades the whole country There is perhaps no state in the Union, where important public works, such as turnpike roads, canals, rail roads, 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 favour of dismissing the bill for want of jurisdiction.

Mr. Justice STORY, dissenting.

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, *584 upon a difference of opinion among the judges, ordered to be again argued; and has accordingly been argued at the present term.

The arguments at the former term, were conducted with great learning, research and ability; and have been renewed with equal learning, research 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 years, 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 local 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 are 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 *585 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, rough 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 twenty-fifth 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. The State of Virginia; 6 Wheat. R. 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. The Bank of the United States, 9 Wheat. Rep. 738 ; and in the Commonwealth Bank of Kentucky v. Wister, 2 Pet. R. 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 twenty-fifth 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 *586 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 of 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 at the argument, to distinguish this case from one where the bridges are contiguous from the beginning to the end.

The present bill is filed 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 formâ 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 *587 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 no where, 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 *588 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. &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 *589 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 favourably 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 honour of the king, which is to be more regarded than his profit." Com. Dig. Grant, G. 12; 9 Co. R. 131. a.; 10 Co. R. 67. b; 6 Co. R. 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 favour 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 gratiâ, certâ scientiâ, et ex mero motu regis;" (See Arthur Legate's case, 10 Co. R. 109, 112, b.; Sir John Moulin's case, 6 Co. R. 6; 2 Black. Comm. 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, 69. 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 *590 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 to 604; in Comyn's Digest, Grant, G. 12; and in Chitty on the Prerogatives of the Crown, chap. 16, s. 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 patents, 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 earundum plenitudinem judicentur; that is, to have a liberal and favourable construction, for the making them available in law, usque ad plenitudinem, for the honour 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, ch. 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. [*] Yet, in Whistler's case, (10 Co. R. 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: *591 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 Rolle. Abridg. 186. C. 25, 30; Cro. Car. 169; Chitty on the Prerogatives, ch. 16, s. 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 Black. 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 enure 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 enure 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 enure 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 *592 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 mean time, 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 Leon. 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 Coke, R. 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 favour 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. 4 , 5; (it should be 6, a.) that if there be a grant of land, cum pertinentiis, *593 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. Abridg. Prerogative, F. 2, p. 602; Comyn's Dig. Grant, G. 12; Lord Chandos's case, 6 Co. R. 55; Sir Robert Atkyn's case, 1 Vent. 399, 409; 9 Co. R. 29, 30. Finch in his treatise on the law, contains nothing beyond the common authorities; Finch's Law, b. 2, ch. 2, p. 24, edit. 1613; Cro. Eliz. 591; Per Popham, C.J. 17 Vin. Abridg. 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. R. 6,) adds these words: "Note the gravity of the ancient sages of the law to construe the king's grants beneficially for his honour, 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. R. 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 8th James 1st, (Davies' Rep. 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. M`D. 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. &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 *594 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. 7 , 13.

Now, there is nothing in this case, which is 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' R. 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. and Cress. 875 and 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. 7 , 13, (which was the sole authority *595 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 enure 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. Rep. 27, 28,) 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 enures 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 king's charter made for the erection of pious and charitable works, shall be always taken in the most favourable 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. &c. And if power is expressly given to purchase, but no clause to alien, the latter 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' Reports, 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.

*596 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. *597 And this is the ground, upon which lord Stowell placed his judgment, as the clear result 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 favour, 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 honour of the crown; 2 Co. 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 honour 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 ma

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