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CASE 
 
 OF 
 
 ♦ 
 
 THE PROPRIETORS 
 
 OF 
 
 CHARLES RIVER BRIDGE 
 
 AGAINST 
 
 THE PROPRIETORS 
 
 OF 
 
 WARREN BRIDGE, 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 SUPREME JUDICIAL COURT 
 
 OF 
 
 MASSACHUSETTS. 
 
 BY OCTAVIUS PICKERING, 
 
 COUNSELLOR AT LAW. 
 
 BOSTON: 
 
 HILLIARD, GRAY, LITTLE, AND WILKINS. 
 
 1830. 
 
 
CAMBRIDGE : 
 
 E W. METCALF AJ SD COMPANY. 
 
 

 REPORT. 
 
 The Proprietors of Charles River Bridge 
 
 against 
 
 The Proprietors of Warren Bridge and others. 
 
 Filing and opening in the clerk’s office a deposition taken in a suit in chancery, is 
 equivalent to a publication in the English practice. 
 
 Notice that a suit in chancery is brought to an issue being given by the plaintiff 
 thirty days before the ensuing term, the case will stand for a hearing at such term 
 in its order on the docket, like cases at law ; the English rules in chancery rela¬ 
 tive to setting down a case for hearing not having been adopted by this Court. 
 
 Whether suits in chancery are embraced by the exception in the 15th article of the 
 declaration of rights, which article provides, “ that in all controversies concerning 
 property, and in all suits between two or more persons, except in cases in which it 
 has heretofore been otherwise Used and practised, the parties have a right to a 
 trial by a jury,” quaere. 
 
 But if a party to a suit in chancery has, by virtue of that article, a right to a trial 
 by jury, it is only in regard to controverted facts deemed essential to the fair and 
 full trial of the case ; and whether a fact proposed to be so tried is essential or 
 not, is to be determined by the Court. 
 
 If, upon inspecting the pleadings, it appears that important facts are asserted and 
 denied, the Court, in its discretion, may direct issues before a hearing. 
 
 Where the legislature passed an act granting additional privileges to a bridge corpo¬ 
 ration, and providing, “ that in consideration of the privileges so granted the cor¬ 
 poration shall relinquish the additional toll on the Lord’s day, from and after the 
 passing of this act,” it was held, that this relinquishment was a condition subse¬ 
 quent, the non-performance of which was a matter between the government and 
 the corporation only, and could not be taken advantage of by a stranger to invali¬ 
 date the grant. 
 
 If a corporation obtain an extension of their charter by false and colourable represen¬ 
 tations to the legislature, it may be made the ground of a quo warranto, but a stran¬ 
 ger cannot take advantage of the fraud to deny the validity of such extension. 
 
 The government of the colony of Massachusetts having established a ferry between 
 Boston and Charlestown, over Charles river, recite, in an ordinance to which are 
 affixed the dates of 1636, 1640 and 1642, that they have given “ the revenue of the 
 ferry” to Harvard College. At a general court in 1640, “ the ferry between Bos¬ 
 ton and Charlestown is granted to the college.” The ferry was at that time under 
 lease. In May 1650 the college was incorporated. In October following, in an- 
 
4 
 
 swer to the petition of the president of the college in regard to “ rectifying the 
 ferry rent, which belongs to the college, it is ordered that it shall be in the liberty 
 and power of the president, in behalf and for the behoof of the college, to dispose 
 of the ferry by lease, or otherwise, making the best and most advantage thereof 
 to his own content.” In an order of 1G54 it is said, *‘ besides the profit of the 
 ferry’ formerly granted to the college, which shall be continued, there shall be 
 yearly levied by addition to the county rate, an hundred pounds, to be paid to the 
 college treasurer, and this to continue during the pleasure of the country. From 
 1639 to 1785 the college received the profits of the ferry; which, during part of 
 the time from 1650, was under their own mauagement, and for the rest of the lime - 
 since that year was leased by them to tenants. The rales of toll were fixed by 
 the college, but the legislature passed acts from time to time for regulating the 
 ferry’, in some instances affecting the toll, sometimes consulting and sometimes 
 without consulting the college. By SI. 1784, c. 53, (passed March 9, 1785,) enti¬ 
 tled, “An act for incorporating certain persons for the purpose of building a 
 bridge, over Charles river, between Boston and Charlestown,” the persons incor¬ 
 porated were authorized to erect the bridge “ in the place where the ferry between 
 Boston and Charlestown is now kept,” and to receive toll for forty years from the 
 day on which the bridge should be opened for passengers ; double toll to be paid 
 on the Lord's day. During that term the corporation were to pay the college an 
 annuity of 2001., and at the end of the term the bridge was to “ revert to and be 
 the property of 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.” The bridge was opened for passengers on 
 June 17, 1786. The college made no conveyance of the ferry by deed to the 
 bridge corporation, but the annuity was paid by that corporation and received by 
 the college. In 1792, on an application for authority to build a bridge across the 
 same river between Boston and Cambridge, a committee of the legislature report¬ 
 ed, that the statute of 1784 was not “ an exclusive grant of the right to build over 
 the waters of that river; ” which report was accepted, and certain individuals 
 were by St. 1791, c. 62, (passed March 9, 1792,) incorporated for the purpose of 
 building the West Boston bridge, between Boston and Cambridge, with authority 
 to receive toll for forty years and with the obligation to pay an annuity to the 
 college : and “ whereas the erection of Charles river bridge was a work of hazard 
 and public utility,” and the West Boston bridge might “ diminish the emoluments 
 of Charles river bridge, therefore, for the encouragement of enterprise,” it was en¬ 
 acted that the'privileges and duties of the proprietors of Charles river bridge 
 should continue thirty years longer, and that in consideration of the privileges 
 in this act granted, they should relinquish the additional toll on the Lord’s day, 
 from and after the passing of this act. Soon afterward the proprietors of Charles 
 river bridge ceased to demand the additional toll, and it has not been exacted 
 since, and in 1802 they’ ordered such parts of the statute of 1791 as concerned 
 them, to be entered on their records; but they did not pass any express vote to 
 accept the act until February 1826, a few months before the expiration of the 
 term of their original charter. They have ever since continued to comply with 
 the provisions of the two statutes. In 1828 (by St. 1827, c. 127,) the legislature 
 incorporated certain persons for the purpose of building the Warren Bridge across 
 the same river, between Boston and Charlestown. This bridge was built in pur¬ 
 suance of the act, near to Charles river bridge, the distance between them on the 
 Charlestown shore being 260 feet and on the Boston shore 915 feet, and in conse¬ 
 quence nearly two thirds of the toll were diverted from Charles river bridge. The 
 act of 1827 provided that the Warren bridge corporation should make compensa- 
 
5 
 
 tion to any person or corporation whose real estate should be taken for the use of 
 the bridge, but was silent in regard to damage of any other kind. It was held :— 
 
 By Morton J., that by virtue of the grants relating to the ferry and the practical 
 construction of them, the college had a permanent indefeasible interest in the ferry, 
 subject to the regulation of the government;—by Putnam J., that the college were 
 seised in fee of the franchise ; and by Parker C. J., that the grants before 1650 
 did not vest in the college the absolute property in the ferry itself, but only a 
 permanent right to the profits, the government being at first trustees of the ferry 
 for the benefit of the college ; and the trust being afterwards relinquished, the col¬ 
 lege thus became the owners of the ferry, subject to the regulation of the govern¬ 
 ment :— 
 
 By Parker C. J., Wilde J. and Morton J., that the right of the college was not 
 transferred to the proprietors of Charles river bridge ;—but by Wilde J., that by 
 the statute of 1784 and the acquiescence of the college, the ferry was extinguish¬ 
 ed ;—and by Morton J., that the public exigencies requiring it, the government 
 seized the college right, (after providing a suitable indemnity,) to enable them to 
 make a compact by which the public wants might be satisfied;—but by Putnam J., 
 that the college, for a valuable consideration paid by the proprietors of the bridge, 
 consented that they should have the ferry during the continuance of their char¬ 
 ter :— 
 
 By Putnam J„ that no other ferry could be lawfully erected by the government, or 
 by an individual, so near to the old ferry as to draw away its custom, and that a 
 ferry set up at the place where Warren bridge is built, would have been so near 
 as to be a nuisance to the old ferry ;—by Parker C. J., that the grant was not of 
 an exclusive right along the whole opposite shores of Boston and Charlestown, 
 neither was it limited to the ferry-ways, but it gave a right to receive toll from all 
 persons, who, having occasion to pass between Boston and Charlestown over the 
 river, would in the usual course of travel cross at this ferry; but that the gov¬ 
 ernment had a right, whenever the increase of population should require it, to es¬ 
 tablish another ferry between the two towns, only providing for a just compensa¬ 
 tion to the proprietors of the old ferry according to the value of the property at 
 the time: in order however to give the owner of an old ferry a claim to compen¬ 
 sation, the new one must not merely be so near as to take away some of the cus¬ 
 tom; it must be near in a positive sense ; it must be within the range of the ex¬ 
 clusive right of the old one; which is to be settled, in the case of a prescriptive 
 ferry', by proof of use, and where a grant exists, by the terms of the grant: — 
 
 By Parker C. J. and Wilde J., that when the legislature authorize the establishment 
 of a bridge or ferry near an old one, this is not a taking of private property for 
 public uses, within the meaning of the 10th article of the declaration of rights cr 
 the fifth amendment to the constitution of the United States, (which provide 
 respectively that private property shall not be “appropriated” or “taken” for 
 public use, without compensation,) as the damages are only consequential; but by 
 Parker C. J., by the principles of our constitution and the nature of our govern¬ 
 ment, the legislature are prohibited from making a grant to the necessary and es¬ 
 sential injury of a pre-existing grant, without providing for a just compensa¬ 
 tion 
 
 By Parker C. J. and Wilde J., that the express acceptance by the proprietors of 
 Charles river bridge, of the statute of 1791, was in due season, it being before the 
 expiration of their original charter and before the grant to the proprietors of the 
 Warren bridge ; and further, that their acceptance might be presumed from their 
 previous proceedings and from the statute’s being to their benefit:— 
 
 By Parker C. J., that the ceasing, soon after the enactment of the statute of 1791, to 
 
6 
 
 take the additional toll and never exacting it since, was a sufficient relinquish¬ 
 ment of it, without any express vote :— 
 
 By Morton J., that the contract between the legislature and the proprietors of 
 Charles river bridge contains no grant, express or implied, of an exclusive right 
 beyond the limits of the bridge itself, but their right extends only to taking toll of 
 such persons as may choose to pass the bridge ; sp that the statute of 1827 is not 
 contrary, either to the constitution of this commonwealth, as taking private prop¬ 
 erty for public use without compensation, or to that of the United States, as im¬ 
 pairing the obligation of a contract:— 
 
 By JVilde J., that the proprietors of Charles river bridge did not derive, expressly or 
 by implication, from the statutes of 1784 and 1791, especially the latter, an exclusive 
 right of transportation over the river between Boston and Charlestown ; and that 
 the statute of 1827 was not repugnant to the declaration of rights, for no property 
 of those proprietors was taken, the damages sustained by them being only conse¬ 
 quential, and was not inconsistent with their rights under the statutes of 1784 
 and 1791, and so was not contrary to the constitution of the United States:— 
 
 By Putnam J., that the proprietors of Charles river bridge having acquired the right 
 of the college to the ferry, did, by virtue of the acts of 1784 and 1791, become 
 seised of an exclusive franchise for transportation over Charles river between 
 Boston and Charlestown over their bridge, as extensive as the owners of the ferry 
 had enjoyed for transportation in boats, so that a new ferry or bridge which would 
 have been a nuisance to the old ferry, would be a nuisance to the old bridge ; that 
 independent of the ferry, the statutes authorizing the proprietors of Charles river 
 bridge to erect a toll-bridge, contains an implied engagement on the part of the 
 legislature, not to grant another bridge so near as to draw asvay the toll from the 
 old one; ar.d that the statute of 1827 is contrary to the constitution of the United 
 States, inasmuch as it impairs the obligation of the grant previously made to the 
 proprietors of Charles river bridge, and contrary to the constitution of this com¬ 
 monwealth, inasmuch as it takes away their property for public uses, against their 
 consent, without compensation, and without provision for a trial by a jury :— 
 
 By Parker C. J., that the contract of the government with the proprietors of Charles 
 river bridge was, that the grantees should have a right as extensive as the owners 
 of the ferry had, to take toll from persons having occasion to pass between Boston 
 and Charlestown, and that this right should not be disturbed or impaired, unless 
 public necessity should demand it, and in such case the grantee should be indemni¬ 
 fied ; and that the statute of 1827, in so far as it authorizes, and by its necessary 
 operation occasions, a diversion of travel and toll from Charles river bridge, with¬ 
 out providing for an indemnity, impairs the obligation of the contract with the 
 proprietors, and is contrary to the constitution of the United States and to the prin¬ 
 ciples of the constitution of this commonwealth. 
 
 This was a bill praying for an injunction to restrain the 
 defendants from building a bridge, which they had begun to 
 erect by virtue of an act of the legislature, and also from 
 suffering passengers to go over the same. The facts alleged 
 in the bill were as follows :—That the plaintiffs were made a 
 corporation by an act passed March 9, 1785, and were author¬ 
 ized to erect a bridge over a navigable river, called Charles Riv¬ 
 er, between Boston and Charlestown, at or near the place w’here 
 
7 
 
 an ancient ferry was before kept; that the bridge was designed to 
 accommodate all passengers of every description, during the term 
 of forty years, on a certain line of travel leading to and from the 
 southerly part of Charlestown from and to the northerly part of 
 Boston, as delineated on a plan annexed to the bill; that by 
 the same act, and for the purpose of reimbursing the money ex¬ 
 pended in building and supporting the bridge, the plaintiffs were 
 authorized to take, for their sole benefit, certain tolls of all pas¬ 
 sengers, as specified in the act; which tolls were to continue 
 forty years from the day of opening the bridge for passengers. 
 That certain duties and obligations in favour of the public were 
 imposed upon the plaintiffs ; as that the bridge should be of 
 certain dimensions and be lighted, as specified in the act, and 
 that the draw should be lifted without any toll, for all vessels 
 passing the same, except in certain cases otherwise provided 
 for. That the proprietors should also pay annually to the Pres¬ 
 ident and Fellows of Harvard College, (who were alleged to be 
 the former owners of the ferry,) 666 dollars 67 cents, during 
 said term ; at the end of which, the bridge should be left in 
 good repair and revert to the commonwealth ; saving to the 
 college a reasonable annual compensation for the annual income 
 of the ferry which they might have received, had not the bridge 
 been built. That the plaintiffs accepted the act of incorporation 
 according to its terms, and thereby a contract was created be¬ 
 tween the commonwealth and themselves conformably to the 
 act. That the President and Fellows of Harvard College, be¬ 
 fore the passing of the act, had become and were the owners 
 of the ancient ferry, exclusive of the right of any person or 
 corporation to maintain a ferry or other permanent method of 
 transporting by boats or otherwise, for hire or toll, any passen¬ 
 gers, cattle or vehicles travelling to and from the southerly part 
 of Charlestown from and to the northerly part of Boston ; that 
 no other ferry across the. river was ever established or used for 
 the travel of passengers between Boston and the opposite shore 
 of the river ; and, that the act of incorporation was passed with 
 the consent of the President and Fellows of Harvard College; 
 by means whereof the plaintiffs became the possessors and 
 grantees of the President and Fellows in the ferry, during the 
 
8 
 
 term of forty years, and entitled to the exclusive right of erect¬ 
 ing a bridge over the river, for the use of all persons going upon 
 the said line of travel, to the same extent and for the same pur¬ 
 pose to which the right of the ancient ferry extended. That the 
 plaintiffs, pursuant to their act of incorporation, built the bridge, 
 and opened the same for passengers on the 17th of June 1786, 
 and have ever since kept the same in good repair, and in all 
 other respects have performed the duties which by the act were 
 to be performed by them, and that the use of the ancient ferry, 
 as the same was before used, has been discontinued. That by 
 another statute of this commonwealth, of March 9, 1792, for in¬ 
 corporating certain persons to build West Boston bridge, so 
 called, leading from West Boston to Cambridge, (which statute 
 was passed with the consent of the President and Fellows of 
 Harvard College,) it was, among other things, recited, that the 
 bridge of the plaintiffs was a work of hazard and public utility, 
 and that another bridge in the place then proposed for the West 
 Boston bridge (which place was higher up the river, and dis¬ 
 tant from the plaintiffs’ bridge about one mile, measuring on 
 the Boston side of the river, and about two miles measuring on 
 the opposite shore) might diminish the emoluments of the plain¬ 
 tiffs’ bridge ; therefore, for the encouragement of enterprize, it 
 was, among other things, enacted, that the plaintiffs should con¬ 
 tinue a corporation as aforesaid for the further term of thirty 
 years, in addition to their original term, making in the whole the 
 term of seventy years, which will expire on the 17th of June 
 1856, at which period their bridge should revert to and be sur¬ 
 rendered in good repair to the commonwealth ; in consideration 
 of which additional grant the plaintiffs should also relinquish the 
 additional toll originally authorized to be taken by them on the 
 Lord’s day. That the plaintiffs did accordingly accept the terms 
 offered them in the last mentioned act; by reason whereof they 
 became entitled to the right of keeping their bridge for the addi¬ 
 tional term of thirty years, to wit, commencing the 17th of June 
 1826, exclusive of the right of any other person or corporation 
 to erect any bridge for accommodating the same travel as above 
 stated. That the last mentioned act went into operation, and im¬ 
 mediately thereupon the plaintiffs relinquished the additional 
 
 0 
 
9 
 
 toll on the Lord’s day and have ever since forborne taking it; 
 and have in all other respects complied with the terms of the 
 two acts above mentioned. By reason of all which the plain¬ 
 tiffs are entitled to have, during the residue of the term of seventy 
 years, the exclusive right of erecting and maintaining their bridge, 
 &lc. The plaintiffs also alleged, that the said corporation called 
 “ The Proprietors of the Warren Bridge” (under whose pre¬ 
 tended authority the individuals named in this bill as combining 
 with them will in any suit at law attempt to justify themselves) 
 have no real or personal property or other funds to respond any 
 damages which the plaintiffs might recover at law for any injury 
 sustained by the erection of the Warren bridge, unless it be from 
 assessments upon the respective proprietors, which assessments 
 are restricted to the mere expenses attending the building of the 
 same. 
 
 The bill then proceeds to aver, that the corporation called 
 “ The Proprietors of the Warren Bridge ” created by an act 
 passed on the 12th of March 1828, (St. 1S27, c. 127,) together 
 with certain other persons, to wit, John Skinner (and others 
 named in the bill) and divers other persons to the plaintiffs un¬ 
 known, combining and confederating together, deny and disregard 
 the exclusive right of the plaintiffs, and openly threaten to erect 
 another bridge over the same navigable river, for the passage of 
 foot passengers and all others, with their cattle and carriages, 
 upon and along the line of travel aforesaid, without payment to 
 the plaintiffs of the tolls granted to them as aforesaid, and have, 
 as the plaintiffs are informed and believe, commenced the build¬ 
 ing of the bridge, beginning the same at the distance of two 
 hundred and sixty feet from the bridge of the plaintiffs on the 
 Charlestown side of the river, and eight hundred and fifty two feet 
 from the end of the plaintiffs’ bridge on the Boston side thereof, 
 and communicating by a highway laid out or intended to be laid 
 out by the defendants from the Charlestown end of the Warren 
 bridge to Charlestown square, with which square both of the 
 bridges will communicate at the distance of about 390 feet from 
 the respective terminations of the bridges on the Charlestown 
 side. That all the travel of every kind, direct from Charles¬ 
 town to Boston, which shall pass over the Warren bridge, must 
 2 
 
10 
 
 as the highways now are and ever have been established, pass 
 through or from Charlestown square, and must necessarily, if 
 the Warren bridge were not erected, pass, as it always has here¬ 
 tofore, over the bridge of the. plaintiffs, paying the lolls estab¬ 
 lished as aforesaid ; and that the only direct avenue from the 
 Boston terminus of the Warren bridge to the business part of 
 Boston is laid out over land newly made, upon which there is 
 neither any dwelling-house or ware-house, store or other build¬ 
 ing for business, until this avenue meets one of the great or com¬ 
 mon avenues along which the travel over the plaintiffs’ bridge has 
 been accustomed to pass. That the bridge is about to be erected, 
 by the Warren bridge corporation and John Skinner and oth¬ 
 ers with the open and avowed purpose and intent of diverting 
 the travel from the bridge of the plaintiffs as aforesaid ; which 
 will operate to their irreparable loss, detriment and injury, and 
 in derogation of their lawfully vested exclusive rights as afore¬ 
 said, and so far as their said rights are concerned will be a nui¬ 
 sance. 
 
 The bill then further avers, that the proprietors of the War¬ 
 ren bridge and J. Skinner and others pretend, that they are duly 
 authorized to build a bridge as aforesaid by virtue of a certain 
 act, purporting to be a statute of the commonwealth, passed 
 on the 12th day of March 1828, entitled “ An act to establish 
 the Warren Bridge Corporation,” a copy of which is annexed, 
 and which the plaintiffs pray may be taken as a part of their bill 
 of complaiot. Whereas the plaintiffs expressly charge, that the 
 alleged statute, as it purports to grant a right to said corporation 
 incompatible with and repugnant to the vested rights of the plain¬ 
 tiffs, did in so far, and in that respect does impair the obligation 
 of the contract aforesaid between the commonwealth and the 
 plaintiffs by which the said exclusive right was granted to the 
 plaintiffs ; and so being contrary to the constitution of the United 
 States is utterly void, invalid and of no effect, and the authority 
 supposed to be derived therefrom is wholly void and ineffectual. 
 That the said proprietors and said J. Skinner and others do at 
 other times give out and suggest, that on account of the increase 
 of travel, the public necessity or convenience did require that 
 another bridge should be erected, and therefore, notwithstanding 
 
11 
 
 the right of the plaintiffs, the legislature at their discretion and 
 for the public accommodation, had a right and were well war¬ 
 ranted in passing the act aforesaid, and the authority derived 
 from it to build said other bridge is a good and sufficient author¬ 
 ity for that purpose ; whereas the plaintiffs expressly charge^ 
 that the constitution of this commonwealth and the bill of rights 
 thereof do so far restrain legislative power, that it cannot revoke 
 or annul its own grant, or transfer or divest a legal vested right 
 in individuals excepting only in those cases where the property 
 of individuals is taken or appropriated for the public use ; and 
 that in such last case such property can only be taken or ap¬ 
 propriated by some act which provides a just compensation 
 therefor to the individuals from whom it is so taken ; and 
 further, that if the public necessity or convenience had required 
 the erection of another bridge at the place aforesaid (which 
 they wholly deny), such other bridge being to the detriment, 
 diminution and destruction of the aforesaid rights of the plaintiffs, 
 would have been a taking of private property for public uses, 
 within the true meaning and intent of the constitution of the 
 United States, and an appropriation of the property of individu¬ 
 als to public use within the true meaning and intent of the con¬ 
 stitution of this commonwealth, which could not be constitu¬ 
 tionally done by a statute of the commonwealth, without provid¬ 
 ing at the same time a reasonable compensation therefor; but 
 neither by the supposed act nor by any other act or proceeding, 
 did the legislature of the commonwealth provide for any compen¬ 
 sation to the plaintiffs for their property so alleged to be taken and 
 appropriated to the public use ; and for this cause also the sup¬ 
 posed act is void. And the plaintiffs further allege, that the 
 proprietors of Warren bridge and J. Skinner and others do fur¬ 
 ther sometimes give out and pretend, that although the said 
 Charles river bridge is 42 feet wide, and wider than required 
 by their act of incorporation, yet it is too narrow to accommodate 
 the public travel on said line of travel ; at other times, that the 
 raising of the draw for the passage of vessels is an obstruction to 
 the public travel, which might in some measure be relieved by 
 the erection of another bridge nearly parallel thereto ; at other 
 times, that the avenue to said bridge on the Charlestown side is 
 
12 
 
 too narrow for the travel leading thereto ; and at other times, 
 that the proposed bridge would accommodate passengers wish¬ 
 ing to go to the westerly part of Boston from Charlestown 
 square ; whereas the plaintiffs, denying that their bridge is too 
 narrow to accommodate the public travel, and that the erection 
 of another bridge as last aforesaid would relieve the delay and 
 inconvenience arising from the raising of the draw, and that the 
 avenue leading to the bridge on the Charlestown side is inconven¬ 
 iently narrow, and that the erection of a new bridge in the place 
 proposed would accommodate passengers from Charlestown 
 square to the westerly part of Boston, other than a very few' pas¬ 
 sengers, and them in a very slight degree, do expressly charge , 
 that while the said act was under the consideration of the legisla¬ 
 ture and before the passing thereof, the plaintiffs did, by memori¬ 
 als addressed to the Senate and House of Representatives of this 
 commonwealth, assert and make knowm their rights aforesaid and 
 did protest against the granting of any authority to erect the new 
 bridge ; and did further expressly offer, at their own expense, if 
 so authorized by the legislature, to make their own bridge sixty or 
 eighty feet wide, and also, in order to relieve the delay and incon¬ 
 venience occasioned by raising the draw thereof, did offer to con¬ 
 struct at their own expense a circular draw thereto, so that travel¬ 
 lers should not be delayed or impeded while vessels were actually 
 passing through their bridge ; and also, that they were willing 
 to make the Charlestown avenue to their bridge of any width 
 which the legislature might authorize ; and also, if deemed 
 expedient, to construct a spur bridge, leading from their bridge 
 to a point at or near the spot where the proposed bridge of the 
 defendants was to terminate on the Boston side ; by means of 
 which the impediments to navigation as w'ell as other incon¬ 
 veniences would be avoided ;—and also, that they would do 
 any other matter or thing, even to the extent of building 
 another bridge, in any way pertaining to the accommodation 
 of the public, &.c. And forasmuch as matters of this de¬ 
 scription are more properly cognizable and relievable in this 
 Court sitting as a court of equity, and in regard that the plaintiffs 
 have no mode of inquiry into, ascertaining and preventing the 
 said nuisance, detriment and injury threatened and commenced 
 
13 
 
 against their said exclusive rights set forth as aforesaid, but by 
 the aid of this Court sitting as a court of equity ; now, to the end 
 that the proprietors of the Warren bridge, and the said John 
 Skinner and others may true and perfect answer make in the 
 premises, &ic. and that they and their agents and servants may 
 forthwith be absolutely enjoined, restrained and prohibited from 
 building or erecting or commencing or proceeding to build or 
 erect the said bridge at the place aforesaid, Sic. 
 
 The bill w 7 as filed on the 2Sth of June 1828, and a subpoena 
 was prayed for, which was granted, and on the same day a mo¬ 
 tion was made for an immediate injunction to stay the further 
 building and finishing of Warren bridge, until a hearing and 
 final decision upon the bill and such answer as should be made 
 thereto by the parties defendant. On this motion notice to the 
 defendants was ordered, and the 5th of August assigned for a 
 hearing ; on which day both parties appeared by their counsel, 
 and were heard on the question, whether the injunction moved 
 for should be granted. Certain affidavits and maps were read 
 and exhibited by the plaintiffs in proof of the facts set forth in 
 the bill. An immediate injunction w'as refused, for the reasons 
 stated by the Court in Pickering’s Reports, vol. 6, p. 393. 
 
 On November 1 , 1828, (in vacation,) the defendants filed 
 an answer to the bill. 
 
 In their answer, the defendants admit the enactment of the stat¬ 
 ute of 1784, c. 53, (passed March 9, 17S5,) but they deny that 
 the corporation thereby created were authorized to build a bridge 
 near the ferry but were alone permitted to build one at the ferry ; 
 and they deny that the plaintiffs’ bridge was intended to accom¬ 
 modate all passengers of every description during the term of for¬ 
 ty years on any particular line of travel. They admit, that by 
 that statute it was provided, that for the purpose of reimbursing 
 those proprietors the money which should be expended in build¬ 
 ing and supporting that bridge, a toll should be established at 
 the rates set forth in the act, and that double toll should be taken 
 on the Lord’s day, but they deny that any duty or obligation 
 was imposed by the act upon the proprietors, other than that 
 the license given by the act to build the bridge would have been 
 ineffectual without the performance of the conditions therein 
 
14 
 
 provided ; or that any penalty is therein contained, other than 
 that the act should be void if the bridge should not be complet¬ 
 ed within the term of three years. They admit that the bridge 
 was built within that time, but they deny that the corporation 
 accepted the act upon the terms and conditions as set forth in 
 their bill; or that a contract arose therefrom of the import and 
 effect alleged by the plaintiffs. Not admitting that Harvard 
 College possessed an exclusive right of ferry, and alleging 
 that if it did, the general court could not have transferred the 
 same to private persons or corporations, they say, that in 1631 
 the government of the colony of Massachusetts Bay, did, by 
 an ordinance, establish a ferry between Boston and Charlestown, 
 to be kept by and under the government, for the accommodation 
 of the people; that in 1654 the general court passed an ordi¬ 
 nance whereby it w’as declared, that the profit of the ferry, 
 which had been before temporarily granted to the college, should 
 be continued ; and they allege, that the ferry belonged to, and 
 the rates of toll were subject to the regulation and control of 
 the general court, for the public benefit; and that by various 
 laws, passed from time to time, the general court did regulate 
 the same and declare who should be exempt from toll, and how 
 the ferry should be leased and managed. They deny that the 
 statute of 1784 w'as passed with the consent of Harvard Col¬ 
 lege, or that the college had knowledge thereof, or that any 
 conveyance was made by the college to those proprietors, or 
 that those proprietors became the successors or grantees of the 
 college, of the ferry or of any such exclusive right as is alleged 
 by the plaintiffs. They deny that those proprietors were enti¬ 
 tled by the act of incorporation to the exclusive right and 
 privilege of erecting and maintaining a bridge over the river 
 for the passage of all persons, for loll, upon and along the line of 
 travel as set forth by the plaintiffs; and they allege, that if the 
 act had contained any such exclusive right, it would have been 
 void, as contravening the sixth article of the bill of rights, which 
 declares that no man, nor corporation, has any other title to ob¬ 
 tain advantages or particular or exclusive privileges distinct from 
 those of the community, than what arises from the consideration 
 of services rendered to the public; and they allege, that Thomas 
 
15 
 
 Russell and others, who petitioned for the act, had not then ren¬ 
 dered to the public any services, nor is it averred in the bill that 
 the act was founded upon the consideration of services render¬ 
 ed by them. 
 
 They further say, that from the time of the first settlement 
 of the colony of Massachusetts Bay, the general courts thereof 
 were invested by the colony and province charters, with the 
 right of controlling the use of the sea-shore, arms of the sea 
 and navigable waters, and of laying out all public roads, ferries, 
 bridges, and ways for the encouragement and facility of com¬ 
 merce, shipping and trade ; and of altering the same and in¬ 
 creasing the number thereof, from time to time, as the conven¬ 
 ience, safety and welfare of the people required, the better to 
 accommodate the same travel which passed over roads, ferries 
 and bridges previously established and would have continued so 
 to pass if the new roads, &c. had not been established ; and 
 that this authority was exercised by the general courts, at their 
 own mere motion, as well as on the petition of private persons; 
 and that when petitions were made, the petitioners were heard 
 either before the general court or their committee, and there¬ 
 upon examination was had whether the exercise of their au¬ 
 thority, as prayed for, would be to the convenience or detriment 
 of the public; and on the reports made by the committees, the 
 general court decided definitively upon such petitions ; and they 
 allege that such course of proceedings and inquiry had been 
 used and practised upon, as well before the adoption of the 
 constitution of this commonwealth, as since. 
 
 They say, that at the time when the act of 1784 was passed, 
 there were and yet are navigable waters and an arm of the sea 
 extending between Charlestown and Boston, and that Massachu¬ 
 setts, as a sovereign state, was and still is possessed of the exclu¬ 
 sive right and ownership thereof; and that the regulation, use and 
 management of the same for the public welfare are subject to 
 the control of the legislature ; that Russell and others sub¬ 
 scribed to a fund for erecting a bridge across those waters, cal¬ 
 led Charles river, and in order that such bridge might not be 
 deemed a public nuisance, applied by their petition to the legis¬ 
 lature for permission to build it, representing that it would be 
 
$ 
 
 16 
 
 of great public utility; and at the same session of the legisla¬ 
 ture, John Cabot and Andrew Cabot also preferred a petition, 
 showing that a bridge over Charles river, from Lechmere’s 
 Point in Cambridge to Barton’s Point in Boston, and distant from 
 the ferry about one half of a mile, would be essentially useful to 
 the public, and offered to build the same at their own expense, 
 they receiving a reasonable toll, and so soon as the sum which 
 might be expended in building the bridge, and the interest there¬ 
 of, should be repaid, to renounce all title to the bridge ; that both 
 petitions were referred to a committee of the legislature, who 
 heard the parties, and made their report, that the petitioners for 
 building a bridge at the ferry should have leave to bring in a bill 
 for that purpose upon certain principles therein set forth ; which 
 petitions and report the defendants exhibit as a part of their an¬ 
 swer. They further say, that the legislature thereupon granted a 
 license to Russell and others to build a bridge in the place 
 where the ferry was then kept, and for the purpose of reim¬ 
 bursing them the money to be expended by them, established a 
 certain toll to be taken for all persons, animals and vehicles 
 passing over the bridge, for the term of forty years. 
 
 They further say, that the right of establishing ferries and 
 any other bridge over these navigable waters, as public neces¬ 
 sity or convenience should require, was not by the act of 1784 
 granted away, but the same remains with the commonwealth as 
 a sovereign stale. 
 
 They further say, that before the enactment of the statute of 
 1791, c. 62, (passed March 9, 1792,) by which the proprietors 
 of West Boston bridge w'ere incorporated, Francis Dana and 
 others applied by petitions to the general court for licenses to 
 erect other bridges, representing that the wants and convenience 
 of the public required that other bridges connected with Bos¬ 
 ton should be erected across these navigable waters ; and there¬ 
 upon the proprietors of Charles river bridge presented a re¬ 
 monstrance against the same, alleging that the granting of the 
 petitions would militate against a grant to them from the com¬ 
 monwealth ; whereupon the petitions and remonstrance were 
 referred to a committee of both houses of the general court, 
 who, after fully hearing those proprietors and the petitioners, re- 
 
17 
 
 ported that there was no ground to maintain that the act of 
 17S4 is an exclusive grant of the right to build over the waters 
 of Charles river ; which report was accepted by the general 
 court. 
 
 They further say, that the proprietors of Charles river bridge 
 made a false and colourable representation to the legislature as 
 to their expenses and receipts, and that influenced by the mis¬ 
 representations, the legislature extended to seventy years the term 
 of taking toll ; and they insist, that by reason of the false rep¬ 
 resentations this enlargement of the term ought to be deemed 
 void. 
 
 They deny that any vote or by-law of the proprietors of 
 Charles river bridge was ever passed, relinquishing the addition¬ 
 al toll on the Lord’s day ; or that any vote or by-law was duly 
 and seasonably passed accepting the provisions in the act of 
 1791, or that any exclusive right vested in that corporation by 
 force of that act. They admit that the proprietors of West 
 Boston bridge erected a bridge, but deny that the plaintiffs de¬ 
 rived any right or title in consequence thereof. They deny that 
 the plaintiffs have annually paid G66 dollars and 67 cents to 
 Harvard College, or have complied with the terms of the act 
 of 1784, and deny that they are entitled to the exclusive right 
 and privilege claimed in their bill. 
 
 They allege, that the term of forty years mentioned in the 
 act of 1784, had expired before the defendant’s act of incorpo¬ 
 ration was passed ; and further, that the proprietors of Charles 
 river bridge had, previously thereto, been fully reimbursed all 
 costs, interest and expenses by them incurred or sustained in 
 building and maintaining their bridge, and had received be¬ 
 sides, from the tolls, the further sum of 1,200,000 dollars, in¬ 
 cluding interest. 
 
 They further say, that in 1785 the population of Boston 
 amounted to 17,000 souls only, and that of Charlestown to 
 1200; and that before the enactment of the statute of 1827 
 c. 127, (passed March 12, 1828,) incorporating the defen¬ 
 dants, the population of Boston had increased to upwards of 
 60,000 souls, and that of Charlestown to 8,000; that the pop¬ 
 ulation of the surrounding towns had increased in a like propor- 
 
 3 
 
18 
 
 tion; and that Charles river bridge was not sufficiently large 
 and commodious to accommodate the increased population, 
 trade and commerce, but had long been, and then was, ex¬ 
 tremely inconvenient, as well as hazardous, for the transporta¬ 
 tion of persons, goods and merchandise ; that in 1785, two 
 thirds of the inhabitants oT Boston dwelt at the northerly part of 
 Boston and near to the place where the ferry was kept ; but that 
 in 182S one half of Boston to the westward and southward of 
 that place, which had been vacant land and water, had been 
 built upon and contained more than 30,000 inhabitants, who 
 could not carry on their trade and business but at great loss of 
 time and money, and much inconvenience, without another and 
 nearer avenue and bridge to Charlestown. 
 
 They allege that the public safety and convenience required 
 that more commodious avenues to and from Boston should be 
 constructed and maintained ; and on the petition of John Skin¬ 
 ner and other citizens representing the aforesaid circumstances, 
 a committee of both houses of the legislature was appointed to 
 examine into the facts, and hear all parties interested ; that the 
 committee gave due notice of their meetings and were attended 
 by the plaintiffs and Skinner and others, and having deliberate¬ 
 ly and fully investigated the matters aforesaid, they made their 
 report, that public convenience required, and that public justice 
 did not militate against the grant of a charter for another bridge 
 from Charlestown to Boston, which report was accepted ; and 
 thereupon the legislature, in order to the public welfare, and be¬ 
 ing the sole judges thereof under the constitution, did duly pass 
 the act creating the corporation of the Proprietors of Warren 
 Bridge ; and they allege that the act was thereafter duly accept¬ 
 ed by that corporation. 
 
 They further say, that on April 14, 1828, that corporation 
 was duly organized ; that before the filing of the bill, they had 
 begun to build a bridge across Charles river, pursuant to their 
 charter, but that it was not then, nor is it yet completed. They 
 deny any avowed purpose or intent of diverting travel from 
 Charles river bridge, and allege that their sole intent is to fur¬ 
 nish another and more safe and convenient avenue for the ac¬ 
 commodation of the public. They aver that if any damages 
 
19 
 
 should be recovered at law by the plaintiffs, for any injury they 
 may sustain, the corporation defendant possess property more 
 than sufficient to satisfy the same. 
 
 They deny that the act of 1827 impairs the obligation of any 
 contract with the proprietors of Charles river bridge ; or that 
 any right or property of the plaintiffs has been taken or appro¬ 
 priated to the public use through or by means of that act; and 
 they allege that if any real estate had been taken, there is a 
 mode provided in the 4lh section of the act, by which compen¬ 
 sation can be had therefor, pursuant to the provisions of the 
 constitution of this commonwealth. 
 
 They deny that the travel referred to in the bill has always 
 heretofore passed over Charles river bridge, and must, as the 
 highways now are or ever have been established, necessarily 
 pass over the same, if the Warren bridge should not be con¬ 
 structed ; but they aver, that persons intending to pass to and 
 from Boston and Charlestown, with their vehicles and animals, 
 did before and since the act of 1784, pass and were transported 
 in boats, and yet may so pass and be transported ; and that 
 since the act of 1784, such persons have passed, and may and still 
 do pass, over Canal bridge and Prison Point dam bridge, at the 
 distance of about 1700 feet from Charlestown square, and at 
 the distance of about 90 rods from the main street leading there¬ 
 to ; which last bridges were erected by permission of the legis¬ 
 lature, given by certain acts in 1806 and 1807, and the legisla¬ 
 ture authorized the same to be connected with a road leading 
 thereto from the main street in Charlestown, by an act passed 
 in 1814. 
 
 They deny that the construction intended for a bridge, yet 
 is or can be a nuisance, as it regards the plaintiffs ; or that if 
 the rights of the plaintiffs were such as pretended, it could be 
 any nuisance before toll had been diverted from Charles river 
 bridge, and taken on behalf of the defendants. And they al¬ 
 lege, that if any nuisance or wrong shall be created or done 
 to the plaintiffs, by reason of the constructing and maintaining a 
 bridge by virtue of the act of 1827 or otherwise, the common 
 law will afford a plain, adequate and complete remedy, and they 
 insist that this Court, as a court of chancery, has no jurisdiction 
 in the premises. 
 
20 
 
 And inasmuch as the several matters set forth in the bill, 
 and slated by way of defence in the answer, are controversies 
 concerning property, and in which parties have a right to a trial 
 by jury, by the constitution of the commonwealth, the defendants 
 require that the same may be tried by a jury to be for that pur¬ 
 pose duly empannelled^ 
 
 On the 13th of November 1S2S, (in term time,) the plain¬ 
 tiffs filed amendments to their bill. 
 
 In these they charge, that by the acceptance of the act of 
 1784 on their part, they became bound to the performance of 
 the several conditions and stipulations contained in the act, on 
 their part to be performed, for the benefit of the public. 
 
 They charge, that shortly after the passing of the act of 1784, 
 the corporation were duly organized under the same, and have 
 so continued to act to the lime of filing this their bill; that be¬ 
 fore the expiration of the three years, the corporation finished 
 the bridge and opened the same for public travel, viz. on the 
 17th of June 1786, and have ever since paid the annuity to 
 Harvard College, and upheld and maintained the bridge ; and 
 they thereupon charge, that these acts and doings are conclu¬ 
 sive evidence of their acceptance of the act of incorporation. 
 
 They charge, that after opening the bridge for public travel, 
 Harvard College forthwith ceased to maintain any ferry from 
 Charlestown to Boston, and have never since claimed to keep 
 or maintain that ferry, or to demand or receive any tolls or oth¬ 
 er profits therefrom ; that ever since the opening of the bridge 
 for public travel, for the space of forty-two years, the plaintiffs, 
 pursuant to the provisions of the act, have paid to Harvard Col¬ 
 lege and the college have received the sum of 666 dollars 67 
 cents annually ; whereupon they charge, that these acts are 
 conclusive evidence that Harvard College were parties to the 
 act of 17S4, and agreed to all the provisions of the same, and 
 to the surrender and assignment of their right in the ferry to the 
 use of the plaintiffs, to enable them to build the bridge for the 
 better accommodation of public travel between Charlestown and 
 Boston, and that with such agreement the general court had 
 good right so to transfer the exclusive right of Harvard College, 
 by force of the act of 17S4. 
 
21 
 
 They charge, that no laws ever were or lawfully could be 
 passed, under the power of regulating, to destroy or take away 
 the franchise, or materially to impair or affect the right of Har¬ 
 vard Coliege in and to the franchise of the ferry : but whether 
 the general court had or had not the power of regulating the 
 tolls of the ferry, or of otherwise controlling and managing the 
 same, still the general court, by fixing the rate of tolls to be tak¬ 
 en at the bridge, by the act of incorporation and by the addi¬ 
 tional act of 1791, for certain terms therein mentioned, fully 
 executed their powers, for those terms, and by force of those 
 acts the plaintiffs became entitled to collect and receive the tolls 
 for those limited terms, free and exempt from any power of the 
 legislature to reduce the same. 
 
 They charge, that by the act of 1784, no exclusive or other 
 title to take the tolls could arise until the completion of the 
 bridge ; that the erecting of it was declared to be a work of 
 great public utility ; that the erection and maintenance of the 
 same, at the great expense and hazard of the corporation, were 
 contemplated as highly important and beneficial services ren¬ 
 dered to the public; that the tolls were granted upon considera¬ 
 tion of these services to be rendered to the public ; and so they 
 charge, that such exclusive grant in no wise contravened either 
 the letter or the spirit of the sixth article of the bill of rights. 
 
 They charge, that before the erection of their bridge, the 
 ancient ferry between Boston and Charlestown was the only ferry 
 between these towns, and that all regular public travel, direct 
 between Charlestown and Boston and over Charles river, passed 
 by the ferry ; that it manifestly appears from the act of 1784, 
 that the bridge was intended for general public use and benefit, 
 and the better to accommodate the public travel, which before 
 had passed by the ferry, and as a substitute for the ferry; that 
 the provisions therein contained did not constitute a mere license 
 to obstruct the navigable waters, but a contract between the 
 corporation and the government, whereby the public granted 
 the said exclusive l'ights to the corporation as a beneficial inter¬ 
 est, in consideration of important public services by them to be 
 performed, and whereby the government necessarily restrained 
 themselves from granting any license to any other person in such 
 
22 
 
 manner as to annul or essentially impair the beneficial fran¬ 
 chise thus, for valuable consideration, granted to the plaintiffs. 
 
 In regard to the allegation, that a committee of both houses 
 of the general court reported that there was no ground to main¬ 
 tain that the act of 1784 is an exclusive grant of the right to 
 build over the waters of that river, the plaintiffs charge, that if 
 such a report was accepted, it could not have the force of law, and 
 even had it been made the basis of any legislative act, declarato¬ 
 ry of the rights of the plaintiffs, it would have no force to inval¬ 
 idate or impair those rights; but they further charge, that the 
 question whether the plaintiffs had or had not an exclusive grant 
 of the right to build over Charles river, in its whole extent, has 
 no bearing upon any question set forth or raised by the plaintiffs’ 
 bill. 
 
 They deny that a report ofa committee ofthe legislature recom¬ 
 mending that an extension of the term be allowed them for taking 
 toll, was ever made or accepted, or that they ever solicited the 
 acceptance of the same, or any enlargement thereof. 
 
 Protesting that the imputations of fraud on the part of the 
 proprietors of Charles river bridge in obtaining an extension of 
 their charter are wholly groundless, the plaintiffs nevertheless 
 charge, that if any of those proprietors did make false represen¬ 
 tations, the act of 1791 would not thereby be void ; and further, 
 that the matter of this imputation, being matter of penalty and for¬ 
 feiture, can be inquired into only by some proper proceedings 
 in the name and by the authority of the commonwealth. 
 
 They charge, that immediately after the passing of the act 
 of 1791, the proprietors of Charles river bridge caused all the 
 clauses of the act, which in any way related to that corporation, 
 to be entered in their book of records, in testimony of their ac¬ 
 ceptance of the same ; that they thereupon forthwith ceased to 
 take the additional toll on the Lord’s day, according to the pro¬ 
 visions of the act—which being for their benefit, their assent to 
 the same is legally to be presumed ; and further, that before 
 the commencement of their extended term for taking lolls, they, 
 as a corporation, for the purpose of obviating all objections in 
 point of form, passed a full and formal vole, reciting the vari¬ 
 ous previous acts of the corporation, which manifested a previous 
 
23 
 
 acceptance of the additional act, and thereby expressly accepting 
 the act; which several acts and votes they charge to be con¬ 
 clusive legal evidence of tbe acceptance thereof by the corpo¬ 
 ration. 
 
 The plaintiffs, denying that they have received the sum of 
 1,200,000 dollars, charge that the only reimbursement pro¬ 
 vided for and contemplated in the original and additional acts, 
 was the uninterrupted enjoyment of the receipt of the tolls there¬ 
 in stipulated, for the terms therein mentioned ; that the ques¬ 
 tion how much they have received is rendered wholly immate¬ 
 rial by the express terms of the acts, but that in fact, whatever 
 may have been the cost of the bridge to the early proprietors 
 and stockholders, all the beneficial interest therein is divided in¬ 
 to transferable shares and held by divers individuals, who, by 
 distribution or purchase, or other good consideration, have ac¬ 
 quired the same at valuations and estimates not founded upon 
 the original cost of the bridge, but upon the probable amount of 
 the tolls for the terms of time stipulated in the acts, and there¬ 
 fore that the corporation and the proprietors of tbe shares there¬ 
 in have not been and cannot be reimbursed in the manner con¬ 
 templated and provided for in the acts, in any other way than 
 by the free and uninterrupted enjoyment of the tolls for the 
 terms of time stipulated. 
 
 The plaintiffs, not denying the increase of the population in 
 Boston and Charlestown, and that to a certain extent, the leg¬ 
 islature are judges of the public necessity and convenience, and 
 for the purpose of facilitating the hearing and decision of this 
 cause, withdrawing their express denial of the existence of 
 such public necessity or convenience, nevertheless deny that the 
 act of 1827 does any where express the determination of the 
 legislature, that in point of fact any such public necessity or con¬ 
 venience did require the erection of another bridge over Charles 
 river, between Boston and Charlestown, for the accommodation 
 of the public travel, and further expressly charge, that if public 
 convenience and necessity did require the erection of such 
 other bridge, or other further accommodation of the public 
 travel over the river, the same could not be granted in such 
 manner as to destroy or impair the franchise of the plaintiffs to 
 

 24 
 
 collect and receive tolls, without a full and adequate compensa¬ 
 tion to them therefor ; and further, that they have been at all 
 times ready and willing to provide for such further public accom¬ 
 modation, as by their bill is fully set forth. 
 
 And the defendants pretend, that the construction so intended 
 for a bridge is not yet nor can be a nuisance as it regards the 
 plaintiffs, until toll shall have been diverted from Charles river 
 bridge, and taken by the defendants ; as if the opening of a free 
 bridge, side by side, and nearly parallel to the bridge of the 
 plaintiffs, on the same line of travel, and the permission for per¬ 
 sons to pass thereon free of toll, were less an injury to the plain¬ 
 tiffs than the erection of a bridge and the taking of tolls thereon 
 at the like rates with the tolls granted to and taken by the plain¬ 
 tiffs by virtue of their franchise. 
 
 The plaintiffs, denying that the sixth article in the bill of rights 
 applies to the trial of matters in equity, and not admitting that 
 there are any matters of fact at issue between the parties, re¬ 
 quiring the intervention of a jury, nevertheless pray, if the 
 Court should be otherwise of opinion, that, for that purpose, 
 according to the usage and practice of chancery, such distinct 
 and pertinent issue or issues as to matters of fact, may be fram¬ 
 ed by the Court, as the Court may judge necessary to be submit¬ 
 ted to a jury. 
 
 On the 2nd of December 1828, (in term time,) the defend¬ 
 ants filed an answer to the amended bill. 
 
 They say, that the proprietors of Charles river bridge did not, 
 after the passage of the act of 17S4, by any vote or written de¬ 
 claration, accept that charter or act; and they deny that the 
 matters set forth by the plaintiffs, if they had been done and 
 performed, can be deemed to be evidence of the acceptance of 
 the act. 
 
 They say, that prior to the passing of that act, the revenue of 
 the ferry had been for divers years, and then was, farmed out by 
 Harvard College ; and although it may be true, that their lessees 
 did cease, at some time thereafter, to keep the ferry, yet the 
 defendants deny that the college discontinued the ferry ; or that 
 the proprietors of Charles river bridge have paid to the col¬ 
 lege annually the sum set forth by the plaintiffs; or that any as- 
 
25 
 
 sent was given by the college to the matters set forth by the 
 plaintiffs ; or that the legislature have fully executed their pow¬ 
 ers as pretended by the plaintiffs. 
 
 They say, that the gift to the college of the revenue of the 
 ferry under the authority of the colonial government, was not the 
 grant of any franchise ; and if it were, that the rights of the ferry 
 were not transferred by the act of 1784, nor the powers of the 
 legislature in relation to the same in any way abridged. 
 
 They say, that prior to the forming of the constitution, the 
 people of this commonwealth, long persuaded of the injurious 
 tendency and grievous effects of monopolies, had, by public acts 
 and laws, declared and manifested their will, that the deposita¬ 
 ries of legislative and executive power should not grant any 
 monopoly or exclusive privilege, unless for new inventions pre¬ 
 viously discovered and made, and then for a short time only ; 
 and in order to limit the powers of the legislature, they express¬ 
 ly provided, in the sixth article of the bill of rights, that no ex¬ 
 clusive privilege should be granted, prospectively or condi¬ 
 tionally, but solely after services had been rendered to the 
 public, when their worth could be duly and fairly estimat¬ 
 ed ; and if the act of 1784 had contained the grant of any 
 exclusive privilege as claimed, the same would have been in 
 direct opposition to the letter and spirit of that article, and there¬ 
 fore void. 
 
 They deny, that the erecting of Charles river bridge, or main¬ 
 taining of the same, was by the act of 1784 contemplated as 
 a highly important and beneficial service to be rendered to the 
 public, but allege that the same was considered as an undertak¬ 
 ing by the petitioners on their own account ; and that the lan¬ 
 guage of the preamble of the act, inasmuch as the same is a 
 private act, is to be taken to be the representation of the petition¬ 
 ers, and not otherwise. 
 
 They deny, that it manifestly appears, from the whole of the 
 act, that the bridge was intended for general public use and 
 benefit, and the better to accommodate the public travel, and as 
 a substitute for the ferry. 
 
 They deny, that the act constituted a contract between the 
 proprietors and the government, whereby the public granted ex- 
 4 
 
26 
 
 elusive rights as a valuable and beneficial interest, in considera¬ 
 tion of important public services to be performed, or that the 
 government necessarily restrained themselves from granting any 
 license to any other person to build other bridges over these 
 navigable waters. 
 
 They proceed to state more particularly the supposed mis¬ 
 representations as to the cost of building and maintaining Charles 
 river bridge, and which they allege render void the act of 1791 
 so far as relates to extension of the time for taking toll ; and 
 they insist, that if the act is not absolutely void until so declared 
 by some judicial process for that purpose to be instituted, yet 
 that when the plaintiffs come into this court of equity, and seek 
 to have the summary and extraordinary powers thereof exercis¬ 
 ed in support of a claim derived under the act, the defendants 
 have a right to show that the claim is destitute of equity, and 
 therefore ought not to be here enforced. 
 
 They allege, that the proprietors of Charles river bridge did, 
 by their acts and votes, make themselves parties to the pro¬ 
 ceedings of the general court in 1792, and submitted their 
 claims to the decision thereof, and were bound by the legislative 
 declaration before mentioned. 
 
 They allege, that the proprietors of Charles river bridge 
 acquiesced in and assented to the decision of the general court 
 as to the construction of their act of incorporation, and ought 
 not now to be permitted to controvert the same ; and they in¬ 
 sist that the petitions, remonstrance and reports, made to the 
 general court, are rightly connected with and form a part of 
 the private acts before mentioned, and bear directly on the 
 questions raised in the bill and answer. 
 
 They deny, that immediately after passing the additional act, 
 the provisions mentioned in the amended bill were entered in 
 the books of the proprietors of Charles river bridge in testimo¬ 
 ny of their acceptance of the same, or that any entry thereof 
 was made for more than ten years after that time ; and they 
 deny that any vote was passed upon the subject of acceptance, 
 until four months next preceding the expiration of the forty 
 years. 
 
27 
 
 They say, that the proceedings before the legislature at the 
 session when the act incorporating the defendants was passed, 
 (the same being a private act,) and the report of the committee 
 thereon, and the acceptance of the report, constituted a decla¬ 
 ration by the legislature, in connexion with the act, that public 
 necessity and convenience did require the erection of another 
 bridge, in like manner as if the report had been repeated in the 
 preamble of the act. 
 
 They say, that by the law extending the equity powers of 
 this Court to cases touching waste and nuisance, it was not de¬ 
 signed nor provided, that this Court should decide upon the 
 quality or nature of any intended act of any person, until such 
 act had been performed, nor was it intended to embrace cases 
 of constructive nuisance ; and they therefore allege, that wheth¬ 
 er a free bridge would or would not affect the claim of the 
 plaintiffs as injuriously as a toll-bridge, has nothing to do with 
 the matters presented by the bill and answer for the decision of 
 this Court. 
 
 They deny that any bridge has been erected side by side and 
 nearly parallel to the bridge of the plaintiffs, or that permission 
 has been given by the defendants to any persons to pass free on 
 any such bridge, as hypothetically stated by the plaintiffs. 
 
 They insist, that notwithstanding any usage or practice of 
 courts of chancery elsewhere, the matters alleged and denied 
 are controversies concerning property, and which, before the 
 forming of the constitution of this commonwealth, had not been 
 otherwise decided than by a trial by jury. 
 
 On the 14th of November 1828, (in term time,) the plain¬ 
 tiffs filed a supplemental bill, in which they state, that since the 
 filing of their complaint, the bridge then begun to be built by 
 the defendants has been so far completed, as that foot passengers 
 are enabled to pass thereon from Boston to Charlestown and 
 from Charlestown to Boston, and that great numbers have in 
 fact so passed and have thereby avoided the payment of the 
 tolls which would have been payable to the plaintiffs, had those 
 persons passed over the plaintiffs’ bridge ; and they further state, 
 that the Warren bridge has been nearly finished for the passage 
 of all persons with horses, cattle and carriages of every descrip- 
 
28 
 
 tion, and that the same, as they believe, will soon be opened 
 for that purpose. 
 
 On the 2d of December 1S28, (in term time,) the defendants 
 filed a plea and answer to the supplemental bill, in which they 
 admit that they have proceeded in erecting the Warren bridge, 
 and that it has been so far completed, as that foot passengers 
 are enabled to pass thereon to and from Boston and Charles¬ 
 town ; and they further say, that no persons have passed over 
 by their permission or consent, except those employed by them 
 in constructing, building and superintending the bridge; and 
 they aver that they have prohibited people from passing the 
 bridge, until it should be opened for trave 1 . 
 
 They also say, that as to the matters set forth in the bill by 
 way of supplement, and charged to have taken place since the 
 institution of the original bill, they are distinct and independent 
 of any matters charged in the original bill, and if they furnish 
 any ground of complaint, they constitute different causes of ac¬ 
 tion from those stated in the original bill, and cannot be taken 
 into consideration in connexion with the original bill. 
 
 The plaintiffs filed a replication on the 19th of December 
 1828 ; which was in term time. 
 
 At a session of the Court held in June 1829, being a con¬ 
 tinuation of March term, the plaintiffs demanded that the cause 
 should be heard as it stood in order on the docket. This was 
 objected to, on the part of the defendants. Their counsel stated, 
 that if filing and opening depositions in the clerk’s office is to be 
 considered as equivalent to a publication in the English chancery 
 practice, the evidence on the part of the plaintiffs was published 
 on the 26th of March; that since then, the defendants had not 
 had sufficient time to take the evidence on their side ; and they 
 urged, that if the plaintiffs wished to speed the cause, they ought 
 to have obtained a rule upon the defendants for the publication 
 of their depositions ; that by the English practice, after an or¬ 
 der of publication, an entire vacation is given, before the cause 
 is set down for a hearing, and there must be a subpoena to hear 
 judgment, returnable before the cause is to be heard ; that al¬ 
 though the English practice is not adopted here in all its minu¬ 
 tiae, yet in the 1st of the “ Rules for the regulation of the prac- 
 
29 
 
 tice in chancery ” this “ Court adopt, as the outline of their 
 practice, the practice of the English courts of equity, so far as 
 the same is not repugnant to the constitution and laws of the 
 commonwealth, nor to the rules which the Court shall from time 
 to time make Metcalf’s Dig. 8S ; and if the plaintiffs ex¬ 
 pected that the cause should now be heard, they ought to have 
 given the defendants notice ; and that the case did not come 
 within the 7th of the rules above mentioned, inasmuch as 
 there was no order to file a plea, demurrer or answer in the va¬ 
 cation, and the defendants were not served with an attested 
 copy of the bill, and no replication was filed in the same vaca¬ 
 tion. 1 Newland’s Ch. Pract. 294, 302 ; Beames’s Orders in 
 Ch. 319, 333, 336 ; 1 Harrison’s Ch. Pract. 497, 500, 523 ; 
 1 Grant’s Ch. Pract. 191. 
 
 The counsel for the plaintiffs said that the cause was brought 
 to an issue in December, and the parties proceeded to take their 
 evidence, in order to be ready for a hearing at the then ensuing 
 March term ; and they relied on the 7th rule above cited, which 
 provides, that when a bill is filed in term time and an answer in 
 the vacation, “ the plaintiff may file his replication in the clerk’s 
 office in the same vacation ; and upon giving notice of such re¬ 
 plication to the defendant, not less than thirty days before the 
 ensuing term, the parties may proceed to take the examination 
 of their witnesses, so that the cause may be heard and deter¬ 
 mined at the ensuing term. Or if the plaintiff shall elect to 
 proceed to a hearing of the cause on the bill and answer, he 
 may give notice thereof to the defendant, not less than thirty 
 days before the ensuing term, and the cause shall be then heard 
 and determined accordingly.” 
 
 Per Curiam. If we were bound by the rules of the Court 
 of Chancery in England, the plaintiffs would not be entitled to 
 a hearing at this time. There, when a cause is set down for 
 hearing, a subpoena to hear judgment is to be served upon the 
 adverse party ten days before the day of hearing, if he lives 
 within twenty miles of London, and fourteen days, if beyond 
 that distance. 
 
 But these rules are not in force here. We have not adopted 
 them formally, and there has been no usage from which their 
 
30 
 
 adoption might be inferred. It has been an object with us to 
 simplify chancery practice ; which can be effected only by 
 avoiding too much regulation. We require only that proper 
 notice shall be given, according to the exigency of the case ; 
 so as to hasten the proceedings as much as possible, without 
 prejudice to a party v for want of time. The construction given 
 by the counsel for the defendants, to the 1st of our rules, is 
 superseded by the 7th rule. Notice, as therein mentioned, 
 being given thirty days before the ensuing term, a case in 
 chancery stands for hearing like any other case, and is subject 
 to motions like other cases. The case before us comes within 
 the equity of this rule. 
 
 The Court further remarked, that it was not necessary to 
 have a particular rule for the publication of testimony. The 
 filing and opening of depositions in the clerk’s office is equiva¬ 
 lent to a publication. They will be on the files and open to the 
 inspection of the parties. 
 
 The defendants afterward claimed “ the right secured to them 
 by the constitution of this commonwealth, of a trial by jury of 
 •the whole matters in controversy, it never having been, before 
 the adoption of the constitution, otherwise used or practised in 
 this commonwealth in such cases; and they deny that the 
 legislature have the power to take from them the right to such 
 general trial, or to authorize the Court to select particular facts 
 and direct issues thereon.” They designated several points as 
 indispensably requiring the intervention of a jury. 
 
 Fletcher and Aylwin rested this claim, as a matter of right, 
 on the 15th article of the declaration of rights; which pro¬ 
 vides, “ that in all controversies concerning property, and in all 
 suits between two or more persons, except in cases in which it 
 has heretofore been otherwise used and practised, the parties 
 have a right to a trial by a jury ; and this method of pro¬ 
 cedure shall be held sacred, unless, in causes arising on the 
 high seas, and such as relate to mariners’ wages, the legislature 
 shall hereafter find it necessary to alter it.” 
 
 But as a matter of discretion, the Court would refer these 
 questions to a jury. Even in England, where undoubtedly the 
 chancellor may determine the facts, the power is exercised 
 
31 
 
 “ very tenderly and sparingly.” St. Paul’s v. Morris , 9 Ves. 
 168; 2 Madd. Ch. Pr. 364. 
 
 Webster and Shaw, contra. In cases in which, before the 
 adoption of the constitution, chancery jurisdiction was given 
 to this Court, the whole power of an English court of chancery 
 was exercised. There was no trial by jury, as a matter of 
 right; so that cases in chancery are within the exception in the 
 declaration of rights. Thus, in chancering the penalty of a 
 bond, after forfeiture confessed or found, the Court determined 
 the facts ; as the fact of payment, &tc.; though they might, in 
 their discretion, direct such facts to be determined by a jury. 
 
 If the defendants could, as a matter of right, deny the bill 
 generally, and have a trial by jury, this claim should have been 
 made sooner. By answering, they have waived the right. In 
 chancery the court get the facts from the party himself, and if 
 he is compelled to be a witness himself, the trial by jury, in the 
 common understanding of the terms, is taken away. 
 
 This is a motion, before a hearing, for issues to try matters of 
 fact. It is a question of practice merely, and does not involve 
 a consideration of the construction to be given to the declara¬ 
 tion of rights. There is nothing in the English practice, of 
 having a hearing before issues are directed, that is inconsistent 
 either with the constitution or with our own practice. The 
 usual course, in an equity suit, is to hear the pleadings and 
 evidence, and observations upon them, and then, if the court 
 see fit, to direct an issue. This is always done by an interlo¬ 
 cutory decree upon the hearing, and is a matter of discretion. 
 The decree states what facts shall be admitted and what evi¬ 
 dence shall be received, with other particulars relating to the 
 trial. 2 Madd. Ch. Pr. 363 ; 1 Newl. Ch. Pr. 350 ; 1 
 Grant’s Ch. Pr. 210; 2 Anstruth. Rep. 480; 2 Fowler’s 
 Exch. Pr. 194; Dale v. Roosevelt, 6 Johns. Ch. R. 255 ; 
 Le Guen v. Gouverneur, 1 Johns. Cas. 436. There are but 
 two courses to be pursued ; the Court must either hear the 
 case, and ascertain that there is a substantial controversy in 
 respect to an important fact which should be determined by a 
 jury, or they must refer the whole case to the jury, making 
 them chancellors under the guidance of the Court. 
 
32 
 
 Fletcher, in reply, said that every thing that is desirable in a 
 court of chancery, may be obtained, without violating the con¬ 
 stitution. 3 Bl. Com. 381. Although before the constitution 
 was adopted, certain cases in chancery may have been heard 
 without a jury, it does not follow that the legislature may with¬ 
 draw from a jury all cases which are subsequently made mat¬ 
 ters of chancery jurisdiction. 
 
 Webster. Cases, in the 15th article, means classes of cases, 
 and cases in chancery composed one of those classes. 
 
 Fletcher. It is said we have waived our right to a trial by 
 jury, by filing an answer. We claim it in the answer itself. 
 Had we previously insisted on such trial, there would have been 
 no issue for the jury. We have a justification ; must we not 
 plead it? If not, what have we to try ? The rules in England 
 are not applicable here in their full extent, but the Court regard 
 the spirit of them as affected by our laws. There, the chancel¬ 
 lor, having power to determine the facts, directs an issue of his 
 own motion and to satisfy his conscience, and he must hear the 
 cause first; here, the party claims a trial by jury as secured to 
 him by the constitution. The Court can examine the pleadings 
 and the suggestions of the parties, to see if there are any, and 
 if any, what questions to be tried by a jury. [ Parker C. J. Sup¬ 
 pose issues shall be framed on all the questions in your motion; 
 both parties have taken testimony in writing ; when you go be¬ 
 fore a jury, is all this evidence to be received, some of which is 
 different from the evidence commonly used in jury trials?] 
 That is a question to be determined at the trial. It is not in¬ 
 consistent with a trial by jury, to put a party on his oath. Our 
 statutes provide for it already in some cases. 
 
 Webster insisted, that the proper time for the defendants to 
 demand a trial by jury, was upon the rule to file an answer. 
 They ought then to have objected to putting in an answer. An¬ 
 swering with a protestando is the same thing as answering with¬ 
 out one, and is a waiver of a trial by jury as a matter of right. 
 
 Parker C. J. delivered the opinion of the Court. We are 
 brought to the consideration of a question of high importance to 
 the partial and limited system of equity established by the legis¬ 
 lature, with very little time and opportunity to give it the atten- 
 
33 
 
 tion it deserves. It is one of the most obvious disadvantages of 
 the present mode of administering the power, that those who 
 are charged with it are, by incessant engagements in the ordi¬ 
 nary course of their functions, rendered in a measure disquali¬ 
 fied for the exercise of duties, which, to be well discharged, re¬ 
 quire the undivided application of a single mind. We however 
 must submit to the ordinances of higher powers, and be con¬ 
 tent with discharging our duty honestly, until the legislature, in 
 their wisdom, shall see fit to make a better disposition of this 
 branch of judicial power. 
 
 The question proposed, in its broadest terms, strikes at the 
 root of a system of equity in this commonwealth, as hitherto ad¬ 
 ministered ; for if, upon a bill in chancery, the respondent has 
 a right to claim that the whole case shall be tried by jury, it is 
 obvious that these cases are brought back again to common law 
 jurisdiction, with some increase of power in the Court, and 
 some change in the form of trial, but with little of the character 
 of chancery proceedings as practised in England, in the Courts 
 of the United States, or of any of the states which have es¬ 
 tablished such a system. Whether this would be an improve¬ 
 ment or not, we are not prepared to say; but it would be clear¬ 
 ly contrary to the declared intention of several successive legis¬ 
 latures since the year 1818, when the first statute was enacted 
 giving to the Court jurisdiction in matters of equity ; for in that, 
 and in all the statutes since passed, though the subjects referred 
 to the Court are specific, the authority over them is as unlimit¬ 
 ed as the Lord Chancellor in England possesses, for we are 
 referred to the rules and proceedings in chancery, as the guide 
 and only limitation of our authority. 
 
 The motion now made is for a trial by jury, and it is insisted 
 on as a right secured by the declaration of rights, prefixed to 
 the constitution and making a part thereof. 
 
 The article relied on is in no ambiguous language; nothing 
 could more explicitly declare the intention of the people, that 
 with the exceptions therein contained, the right to trial by jury 
 should never be invaded. Now the case presented by this bill 
 is a controversy concerning property, and it is also a suit be¬ 
 tween parties ; so that unless it is a case in which, at the time 
 
 5 
 
34 
 
 of the adoption of the constitution, a different mode of trial could 
 be said to have been practised, it is most clearly included in 
 the article. But we wish not to decide this question now, be¬ 
 lieving it not to be necessary, and that further time might ena¬ 
 ble us to show that the case comes within the practice. We find 
 that the colonial legislature, in the year 1G85, vested in the county 
 courts as ample jurisdiction in matters of equity, as exists in 
 the courts of chancery in England. That statute continued in 
 force until the grant of the provincial charter in 1691, by which 
 the colonial statute was probably considered to be repealed. 
 After the charter, in 1692 the whole chancery power was vest¬ 
 ed in the governor and eight of the council, with a power to 
 delegate it to a chancellor to be appointed by the governor. 
 The next year the legislature, declaring that this mode of ad¬ 
 ministering the power was found in practice to be inconvenient, 
 repealed the law, and transferred the power to three commis¬ 
 sioners ; and in the succeeding year this tribunal was supersed¬ 
 ed, and a high court of chancery was established. We have 
 it from tradition, and I have seen it somewhere in history, that 
 these several acts became null and void by reason of the nega¬ 
 tive of the king, which was exercised according to the charter, 
 within three years after their enactment; they were however in 
 force, according to the provisions of the charter, until the veto 
 of the king was made known to the constituted authorities here. 
 Now whether the framers of the constitution, and the people, 
 had reference to those former chancery tribunals, when they 
 adopted the exception to the general provision in the 15th ar¬ 
 ticle, may admit of question ; we are inclined to think, how 7 - 
 ever, that the word “ heretofore,” in the exception, could hard¬ 
 ly be applicable to a practice which had ceased to exist nearly 
 a century before the constitution was adopted. In regard to 
 probate cases, and suits for redemption of mortgages, the prac¬ 
 tice of trying facts by the court instead of the jury, had con¬ 
 tinued down to the adoption of the constitution. But we say 
 again, that we do not wish to decide this question now, any fur¬ 
 ther than to declare, that a reasonable construction of the 15th 
 article does not require that a suit in chancery shall be tried 
 just as a suit at common law would be, and that there is no ne- 
 
35 
 
 cessity that the whole case shall be put to the jury. The most 
 that can be made of the article is, that all controverted facts 
 deemed essential to the fair and full trial of the case, shall be 
 passed upon by the jury, if the parties or either of them re¬ 
 quire it. And whether the facts proposed to be so tried are 
 essential or not, must of necessity be determined by the court. 
 There may be many facts stated in a bill and denied in an answer, 
 and also facts alleged in the answer, which are wholly immate¬ 
 rial to the merits of the case, and such facts the court may re¬ 
 fuse to put to the jury ; just as in an action at common law, if 
 a party offers to prove facts which are irrelevant, the court may 
 reject the proof; and as immaterial issues, even after verdict, 
 may be rejected as nugatory. The right of the party to go to 
 the jury is preserved, if he is allowed that course in regard to all 
 such facts as have a bearing upon the issue for trial. 
 
 But it is objected, that according to the course of proceed¬ 
 ings in chancery, the motion is premature, because an issue can 
 be directed only on a hearing, for it cannot be determined of 
 what facts the issues shall consist, until after a hearing shall 
 have taken place, and the evidence is looked at which is ad¬ 
 duced in support of the facts. 
 
 If it were true, that issues to the country should be ordered 
 only when the court, on inspecting the evidence, found a diffi¬ 
 culty in deciding the fact, this position would be maintained ; 
 but certainly a full hearing is not necessary in order to come to 
 the result; for if by inspecting the bill and answer it should be 
 perceived that there are important facts asserted and denied, 
 we do not see why issues may not be directed as soon as the 
 court shall determine, in their discretion, that those facts shall 
 be so ascertained : and certainly much time may be saved by 
 this course of proceeding. Now in exercising discretion upon 
 an application for an issue, the Court cannot but have some re¬ 
 gard to the expression of the public will in the declaration of 
 rights on this subject of a trial by jury, so as more carefully to 
 preserve the general principle, although they may doubt of the 
 existence of a right. This Court cannot be desirous of enlarg¬ 
 ing its jurisdiction, or of assuming the trial of facts in any case, 
 and certainly not in the exercise of a jurisdiction reluctantly 
 
36 
 
 given by the legislature and by no means coveted by us. In 
 most cases therefore, when a trial by jury shall be asked for, it 
 will probably be granted, unless it shall manifestly appear that 
 the object of pursuing that course, in the party applying, is to 
 delay or embarrass the cause'by putting to the jury issues whol¬ 
 ly immaterial. If however it is still insisted, that a hearing to 
 some extent should be first had, in order to understand the per¬ 
 tinency of the facts sought to be tried, we will hear counsel 
 further upon that point. 
 
 We have looked over the numerous points selected by the 
 counsel as proper subjects of an issue, and compared them with 
 the bill and answer, and are satisfied that some of them are of 
 a character suitable for the jury, if the parly requires it, though 
 in regard to most of them the evidence will probably be of a 
 nature to be judged of, in regard to its legal effect, by the 
 court, rather than the jury ; such as statutes, records, 8zc.; and 
 in regard to these, it will be a matter of discretion in the coun¬ 
 sel, whether, after all, a trial by jury will be of any use. There 
 are other points suggested, which we deem wholly immaterial 
 to the rights of the parties and the decision of the cause, and 
 these will not require an issue. 
 
 If a trial by jury shall be still claimed, we think it our duty 
 to provide for such a trial as soon as possible. We can see 
 no good reason for delay. The parties are at liberty, if they 
 agree, to use the depositions which have been taken in the 
 cause ; if they do not, they know the facts to be proved and the 
 witness by whom it is expedient to prove them. 
 
 The Court proceeded to state which of the questions proposed 
 by the defendants were proper to be tried by a jury, and which 
 were not; giving liberty however to counsel to object to the 
 discrimination. 
 
 The St. 1791, c. 62, § 9, provides, “that in consideration of 
 the privileges in this act granted to the proprietors of Charles 
 river bridge, the said proprietors shall relinquish the additional 
 toll on the Lord’s day, from and after the passing of this act; ” 
 and one of the questions proposed to be submitted to a jury 
 was, whether this provision had been complied with. The 
 Court said, that this was not proper to be tried ; because the 
 
37 
 
 provision was only a condition subsequent, the non-performance 
 of which might be a ground of forfeiture upon proper process 
 instituted by the government, but could not be taken advantage 
 of by a stranger. 
 
 Another question was, whether the proprietors of Charles 
 river bridge procured the extension of their charter by the act 
 of 1791, by means of false suggestions and false and colourable 
 representations to the legislature. This question, the Court 
 said, was immaterial. If fraud was practised, the charter could 
 be revoked only upon a process of quo warranto. As the cor¬ 
 poration had been suffered to exist forty years, and had been 
 found beneficial, the government might be willing to let it con¬ 
 tinue, even if an extension of the charter had been fraudulently 
 obtained. The defendants cannot take advantage of the sup¬ 
 posed false representations. A man passing over the bridge 
 might as well refuse, on the same ground, to pay the toll. If 
 the question had come up in an action on the case against the 
 plaintiffs for a nuisance, it would have been considered irrele¬ 
 vant. Further, in the act incorporating the proprietors of the 
 Warren bridge the charter of the plaintiffs is recognised, and 
 some indemnity is provided for them. So that the question of 
 fraud must be thrown entirely out of the case. 
 
 After this opinion was given, the defendants waived their right 
 to a trial by jury, and in October 1S29 the cause was heard up¬ 
 on the merits. 
 
 By the evidence it appeared, that at a court of assistants held 
 at Boston November 9, 1630, it was ordered, “that whosoever 
 shall first give in his name to Mr. Governour, that he will un¬ 
 dertake to set up a ferry betwixt Boston and Charlton, and shall 
 begin the same at such time as Mr. Governour shall appoint, 
 shall have 1 d. for every person, and 1 d. for every hundred 
 weight of goods, he shall so transport.” 
 
 1631. “Edward Converse hath undertaken to set up a ferry 
 betwixt Boston and Charlestown, for which he is to have two 
 pence for every single person, and one penny a piece if there 
 be two or more.” 
 
 November 5, 1633. “ Mr. Richard Brown is allowed by the 
 
 court to keep a ferry over Charles river against his house, and is 
 
38 
 
 to have two pence for every single person, he so transports, and 
 one penny a piece if there be two or more.” 
 
 At the general court held at Newtown, May 6, 1635, “ it is 
 ordered, that there shall be a ferry set up on Boston side, by 
 Wind-mill hill, to transport men to Charlton and Winnesirnet, 
 upon the same rates that the ferrymen at Charlton and Wene- 
 semet transport men to Boston.” 
 
 November 2, 1637, the ferry between Boston and Charles¬ 
 town is referred to the governour and treasurer, to let at 40 1. 
 per annum , beginning the first of December, and from thence 
 for three years. 
 
 Evidence was given of an instrument in the hand-writing of 
 governour Winthrop, with an apparently original signature of 
 “ Edward Converse,” dated November 28, 1637, stating that 
 “ the governour and treasurer, by order of the general court, 
 did demise to Edward Converse the ferry between Boston and 
 Charlestown, to have the sole transporting of passengers and 
 cattle from one side to the other, for three years from the first 
 day of the next month, for the yearly rent of forty pounds, Sic. 
 provided that he see it be well attended and furnished with suf¬ 
 ficient boats, and that so soon as may be in the next spring, he 
 set up a convenient house on Boston side, and keep a boat there 
 as need shall require; and he is allowed to take his wonted 
 fees, viz.” Sic. 
 
 At a general court held September 6, 1638, “there is a fer¬ 
 ry appointed from Boston to Winnetsemet, Noddle’s Island and 
 the ships—the person to be appointed by the magistrates of Bos¬ 
 ton.” 
 
 In an ordinance respecting Harvard College, to which in the 
 edition of the laws published in 1672 are affixed the dates of 
 1636, 1640 and 1642, it is recited that “ there is a college, &c. 
 for the encouragement whereof this court hath given the sum of 
 four hundred pounds, and also the revenue of the ferry betwixt 
 Charlestown and Boston.” 
 
 At a general court held October 7, 1640, “ the ferry between 
 Boston and Charlestown is granted to the college.” 
 
 At a session in October 1644, “ it is ordered, that the magis¬ 
 trates and deputies of the court, their passages over the ferries 
 
39 
 
 together with their necessary attendants shall be free, not paying 
 any thing for it, except at such ferries as are appropriated to 
 any, or are rented out and are out of the country’s hands, and 
 there it is ordered that their passages shall be paid by the coun¬ 
 try.” 
 
 At a general court in 1646, in answer to the petition of James 
 Heyden, with his partners, ferrymen of Charlestown, it is de¬ 
 clared, that by “ necessary attendants ” in the last order, is meant 
 a man and a horse, and not the families of the magistrates or 
 deputies. 
 
 Harvard College was made a corporation in May 1650. 
 
 At a general court held October 15, 1650, “in answer to 
 the petition of Henry Dunster, president of Harvard College, 
 respecting the hundred pounds due from the country to the col¬ 
 lege, and rectifying the ferry-rent, which belongs to the college,” 
 it is ordered, that “ when the lease is expired, it shall be in the 
 liberty and power of the president, in behalf and for the be¬ 
 hoof of the college, to dispose of the said ferry by lease, or oth¬ 
 erwise making the best and most advantage thereof to his own 
 content, so as such he disposeth it unto perform the service and 
 keep sufficient boats for the use thereof as the order of court 
 requires.” 
 
 In October 1654, the general court, reciting, that “ at present 
 the work of the college hath been several ways obstructed, and 
 seems yet also at present for want of comfortable maintenance 
 for the encouragement of a president,” and “ fearing lest we 
 should show ourselves ungrateful to God, or unfaithful to pos¬ 
 terity, if so good a seminary of knowledge and virtue should fall 
 to the ground through any neglect of ours,”—order, “ that (be¬ 
 sides the profit of the ferry formerly granted to the college, 
 which shall be continued) there shall be yearly levied by addi¬ 
 tion to the country rate, one hundred pounds, to be paid by the 
 treasurer of the country to the college treasurer, &c. and this to 
 continue during the pleasure of the country.” 
 
 At a general court in May 1655, “ in answer to the petition of 
 Mr. Charles Chancey, president of Harvard College, &ic. the 
 treasurer is desired to disburse the sum of 30L to furnish his 
 necessary occasions, to be repaid out of the first rent of the fer¬ 
 ry.” 
 
40 
 
 By Prov. St. 6 TV. M. c. 6, (Anc. Charters &ic. 280,) 
 “ for regulating ferries,” it is provided, “ that boats be kept on 
 either side of the water, at Charlestown ferry, &c. the ferrymen 
 on each side to have a separate interest; and that the ferry be 
 not from henceforth leased out otherwise. And all the mem¬ 
 bers of the general assembly shall be ferriage free at all ferries, 
 in their passirtg to and from the assembly, and shall be trans¬ 
 ported without any unnecessary delay, on pain of forfeiting 
 twenty shillings.” 
 
 By Prov. St. 8 Will. 3, c. 6, (Anc. Charters &c. 294,) it is 
 provided, “ that when and so often as it shall happen, that the 
 boats employed for the ferry betwixt Boston and Charlestown 
 shall be on the same shore, upon the landing of the second boat, 
 the first shall forthwith put off and pass over to the other side, 
 passengers or no passengers,” on penalty, &.C. 
 
 The Prov. St. 9 Ann. c. 1, “for the better regulating the 
 ferry over Charles river, betwixt Boston and Charlestown,” 
 after reciting that several petitions had been offered to the gen¬ 
 eral court, signed by many of the inhabitants of Charlestown, 
 Cambridge and other towns, complaining of neglect of due atten¬ 
 dance of the ferry, “ and having thereupon been attended by 
 the treasurer of the college (the profits and revenues of the 
 said ferry being granted to Harvard College in Cambridge) and 
 seen the lease by him made of the said ferry for several years 
 yet to come,—for redress of the grievances complained of, and 
 to the intent the said ferry may be accommodated for the good 
 and service of the province, and of her Majesty’s subjects with¬ 
 in the same, much increased over what they were at the first 
 settling of the ferry, now become a great passage for transpor¬ 
 tation ; which, that it may be done with the more ease and speed, 
 the said lease or leases notwithstanding : ”—enacts, that there 
 shall be “ three sufficient suitable boats,” and prescribes the 
 mode and time in which they shall continue plying and the rates 
 of ferriage ; “ the said three boats to be three several separate 
 interests, not all of one town.” 
 
 The first book of the college records is said to have been 
 destroyed when the library was burnt, in 1764. The first en¬ 
 try on the subsisting records relative to the ferry, is of a meet- 
 
41 
 
 ing of the corporation on August 4, 1701, when it was voted, 
 “ that the ferry at Charlestown be let to John Russell,” &zc. 
 
 At a meeting, April 7, 1713, after a recital that" a motion 
 has been made in the general court for the building a bridge 
 over Charlestown ferry, and a committee appointed thereupon 
 to receive proposals, &c. it is voted—“ That the president, the 
 treasurer, Sic. be desired to represent and insist upon the right 
 which the college hath in and to the profits of the said ferry, 
 before the said committee, and as they shall find it needful and 
 proper, before the general assembly.” 
 
 At a meeting, October 27, 1713, it was voted, that whereas 
 the general assembly have directed Dr. Clark and a commit¬ 
 tee of the house of representatives, upon a proposal to erect a 
 bridge over the ferry, to confer with the college upon that affair, 
 the president &c. be a committee to confer with Dr. Clark, &c. 
 
 At a meeting, February 10, 1725, the corporation vote that 
 each of the boats be, for three years following the first of May 
 next, leased to one person only, instead of two, as it then was. 
 
 At a meeting, April 1, 1728, it is voted, that the treasurer be 
 desired to inquire what will be the expenses of repairing with 
 smooth stones the ferry-way on the Boston side. 
 
 At meetings, on November 17, 1777, May 5, 1778, and No¬ 
 vember 28, 1779, votes were passed, directing the treasurer to 
 settle the accounts for repairs on the ferry-ways, fixing the rent 
 of the ferry and the rates of ferriage. 
 
 At a meeting, October 11, 1780, it was voted, “ that the treas¬ 
 urer be directed to order the necessary repairs for sheds on 
 each side of the ferry, the cost to be hereafter laid before the 
 general court for allowance,” 
 
 On the 16th of May 1781, an act (St. 17S0, c. 42,) was 
 passed, “ for the better government and regulation of the ferry 
 between Boston and Charlestown, and for repealing the laws 
 heretofore made for that purpose.” This statute requires, 
 among other things, that there shall be four boats ; that each 
 boat shall have a separate interest ; that no person shall be ap¬ 
 pointed by the corporation of Harvard College a master ferry¬ 
 man, unless he shall be previously approved as a suitable per¬ 
 son by the selectmen of Charlestown ; that upon notice from 
 
 6 
 
42 
 
 those selectmen of the misconduct of any of the ferrymen or 
 owners of the boats, the corporation shall within sixty days 
 discharge such ferryman or owner from any employment in the 
 ferry, and in case of their neglect or refusal so to do, shall for¬ 
 feit a sum equal to the rent of the ferry for the then current 
 year ; that whenever the corporation shall make any alteration 
 in the rales of ferriage, they shall publish the rates by them 
 established, in one or more of the Boston newspapers; and 
 that there shall be made and kept in good repair, a convenient 
 and comfortable shed, and suitable ways for passing to and 
 from the ferry-boats, at the landing-place on each side of the 
 river, at the charge of the corporation. 
 
 On February 17, 1786, upon an application of the ferrymen 
 for an abatement of rent, the college voted, “ that they be excused 
 from paying any rent for the last three mouths preceding the 
 opening of the bridge, provided they pay the rent now due, or 
 that may be due to the aforesaid time, and conform themselves 
 in all things agreeably to the rules and orders, settled by the 
 corporation for the regulation of the ferry.” 
 
 No vote was found, relating to the ferry, of a later date than 
 the one last mentioned. The college records contain many oth¬ 
 er votes respecting the regulation of the ferry, the amount of 
 fare, the leases and rents, similar in character to those above 
 recited. 
 
 The secretary of the corporation testified, that in the records 
 for one year before the 9th of March 1785, and for the period 
 since elapsed, there is no vote of the corporation conveying, or 
 authorizing any person to convey, on behalf of the college, any 
 ferry rights, or the ferry between Boston and Charlestown, to 
 any person or corporation whatever. 
 
 It appears from entries in the books of account of the college, 
 that the college received annually, for many years after 1639 
 and to the month of May 17S6, various sums of money as the 
 profit or income of the ferry. In some years between 1639 
 and 1786, no account of the receipts of the ferry can be found. 
 For several years after the grant of the ferry, the college man¬ 
 aged it by their agents. For about one hundred years before 
 1786 they leased it at an annual rent payable quarterly. The 
 rents fluctuated very much during that period. 
 
43 
 
 Extracts from the records of the colony of Massachusetts 
 were exhibited, respecting other ferries. In 1638, “ Garret Spen¬ 
 ser is granted the ferry at Lynn for two years, taking two pence,” 
 &c. In 1639, “the ferry between Mount Woolaston and Wey¬ 
 mouth is ordered to be removed to the nearest and most con¬ 
 venient place,” Sic. In 1641, “ it is ordered, that they that put 
 the boats between Cape Ann and Anisquam, shall have liberty 
 to take sufficient toll, as the court shall think meet, for one and 
 twenty years.” In 1648, upon information given that there is 
 no ferry kept over Neponset river, between Dorchester and 
 Braintree, John Glover is empowered “ either to grant it to any 
 person or persons, for the term of seven years, so it be not any 
 way chargeable to the country, or else to take it himself and 
 his heirs, as his own inheritance forever; provided that it be 
 kept in such a place and at such a price, as may be most con¬ 
 venient for the country, and pleasant to the general court.” 
 
 In 1670, “ for the encouragement either of the town of Cam¬ 
 bridge or any particular persons that shall repair the bridge, or 
 erect a sufficient cart-bridge over the river at Cambridge, and 
 maintain the same for the safety of passengers, they are hereby 
 empowered to take toll at the rates following, &c. and this order 
 to continue in force so long a time as the said bridge is main¬ 
 tained serviceable and safe for passage.” 
 
 On February 2, 1785, Thomas Russell and others offered a 
 petition to the legislature, representing, “ that the only communi¬ 
 cation between Boston and the easterly and northerly part of 
 this state, is by ferries, &c. and it has long been the wish of 
 many to see a bridge erected across Charles river, in the place 
 where the ferry between Boston and Charlestown is now kept; ” 
 that the “ petitioners, taking into consideration the great advan¬ 
 tage that will arise, not only to the towns of Boston and Charles¬ 
 town, but to all the country to the westward, northward and 
 eastward, by the accomplishment of so desirable an object, have 
 made some inquiries, &c. and have good reason to suppose 
 that such a work (though at great expense) may be accom¬ 
 plished in such way and manner, as greatly to accommodate 
 the public in general; ” that they “ are willing, provided suita¬ 
 ble encouragement is given them, to undertake said work at 
 
44 
 
 their own cost and charge ; ” and they pray to be incorporated 
 “ for the purpose aforesaid, under such liberties and regulations, 
 as will make to them a suitable compensation for the great risk 
 and charge that will be incurred in the prosecution of said busi¬ 
 ness.” 
 
 On February 3, 1785, John Cabot and Andrew 7 Cabot pre¬ 
 sented a petition to the legislature, representing that a bridge 
 over Charles river, from Lechmere Point in Cambridge to 
 Barton’s-Point in Boston, would be essentially useful to the pub¬ 
 lic ; that the petitioners are ready to build one at their own ex¬ 
 pense ; that they will be content to receive such reasonable toll 
 as the legislature shall think fit to establish ; that so soon as the 
 sum which may be expended in building the bridge, and the 
 interest thereof, shall be paid to the petitioners by the reception 
 of the toll, they will renounce all title to the bridge and the prof¬ 
 its thereof, and the same.shall be vested in the commonwealth; 
 and that so long as the petitioners shall be entitled to receive 
 the toll, they will engage to pay 200 1. annually for the use of 
 Harvard College. 
 
 On February 12, 1785, a petition was presented on behalf of 
 the inhabitants of Charlestown, stating their sufferings during the 
 war of the revolution, setting forth the advantages of having a 
 bridge where the ferry is kept, and the inconveniences to the pub¬ 
 lic and the injuries to themselves, which would attend a bridge 
 erected from Lechmere Point to Barton’s Point, appealing to 
 the compassion and justice of the legislature, and praying that 
 the petition of Russell and others may be granted and that of 
 the Cabots denied. 
 
 These three petitions were referred to a committee of both 
 houses of the legislature, who reported that the petitioners for 
 building a bridge at the ferry should have leave to bring in a 
 bill for that purpose, upon certain principles; one of which 
 was, that there should be established, as a compensation for 
 the expense of building and repairing the bridge, and as a rev¬ 
 enue for the use of Harvard College, certain rates of toll, 
 which were specified, for the the term of-years. 
 
 On March 9, 1785, an act was passed (St. 1784 c. 53,) 
 “ for incorporating certain persons for the purpose of building a 
 
45 
 
 bridge over Charles river, between Boston and Charlestown, 
 and supporting the same during the term of forty years.” Af¬ 
 ter reciting in the preamble, that “ the erecting of a bridge over 
 Charles river, in the place where the ferry between Boston and 
 Charlestown is now kept, will be of great public utility,” and 
 that Thomas Russell and others have petitioned for an act of 
 incorporation to empower them to build the bridge, the act pro¬ 
 vides (§ 1), that Russell and others shall be a corporation under 
 the name of The Proprietors of Charles River Bridge : (§ 3), that 
 “ for the purpose of reimbursing the said proprietors the money 
 expended, or to be expended, in building and supporting the 
 said bridge, a toll be and is hereby granted and established for 
 the sole benefit of the said proprietors, according to the rates 
 following, &c. and in all cases double toll shall be paid on the 
 Lord’s day, &c. and the said toll shall commence at the day of 
 the first opening of the said bridge for passengers, and shall 
 continue for and during the term of forty years from the said 
 day : ” (§ 4), that the bridge shall be well built, at least forty feet 
 wide, with a convenient draw ; shall be kept in good repair for 
 the term aforesaid, and at the end of the term shall be left in like 
 repair ; shall be constantly kept accommodated with at least 
 twenty good lamps on each side &c. ; and the draw shall be 
 lifted for all ships or vessels without toll or pay, except such as 
 usually pass under Cambridge bridge, and those passing for pleas¬ 
 ure : and (§ 5), “ that after the said toll shall commence, the said 
 proprietors or corporation 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 said bridge been erected.” 
 
 In 1792, the corporation of Charles river bridge remonstrated 
 against the petitions of Francis Dana and others, pray ing for li¬ 
 cense to erect a bridge over Charles river from West Boston to 
 Cambridge. They allege, that in consequence of the charter grant¬ 
 ed to them in 1785, the proprietors t»f Charles river bridge imme¬ 
 diately exerted themselves in its erection, at an expense which 
 
46 
 
 has amounted to upwards of 51,000 dollars, and have since added 
 to that expense for its support, 18,800 dollars more; that in 
 1649 [1640] this government' (in the idea of this corporation) 
 made an absolute exclusive grant of the ferry between Boston 
 and Charlestown, to Harvard College, and upon this idea the 
 corporation purchased this grant of the college at the price of 
 200/. per annum; that a full and valuable consideration was 
 made for the grant aforesaid, by the corporation contracting 
 with the legislature, that the bridge, at the expiration of forty 
 years, should revert to the public in good repair; that the pro¬ 
 fits have never amounted to eleven per cent, upon the original 
 cost, and that if a new bridge so near the present one should be 
 erected, more than one half of the present profits must be lost : 
 And they pray that the petitions may be dismissed, as militating 
 in their principles with public faith, and operating to the very 
 great injury of the remonstrants. 
 
 On Saturday, February 18, 1792, in the senate, it was or¬ 
 dered, that the next Monday be assigned for hearing the propri¬ 
 etors of Charles river bridge, by their counsel, relative to the 
 report of the committee of both houses, granting the petition of 
 Dana and others, and that those proprietors notify the petition¬ 
 ers, as soon as may be, of this assignment. 
 
 At the same session of the legislature, the college offered a 
 memorial, stating “ that in the year 1640 the legislature, in or¬ 
 der to encourage learning, granted to the college the perpetual 
 right of conveying passengers with their effects across Charles 
 river, from and to Boston ; ” that when the British troops evac¬ 
 uated the town of Boston, the college, at a considerable ex¬ 
 pense, repaired and widened the ways and built sheds, &c. and 
 that they received an annual income of 200/., which income, as 
 the country increased, would undoubtedly^ have increased in the 
 same proportion ; that a few years after, some persons made 
 application to the legislature for liberty to build a bridge across 
 the "river, which w r as granted, on condition of their paying to the 
 college the sum of 200/. annually; that to this the college, sen¬ 
 sible of the advantage to the community in general from such 
 an undertaking, made no objection, supposing that at the expi¬ 
 ration of the term for which the bridge was given, it would be- 
 
47 
 
 come the property of the college ; that the corporation, hearing 
 of an application for liberty to build another bridge over the 
 same river, think it their duty to present this memorial, in full 
 confidence that the legislature will take such measures as shall 
 seem best, to compensate the college for the loss of the increas¬ 
 ing income which would have arisen from the privilege granted 
 them to the river. 
 
 A committee of both houses made a report, which was 
 amended and accepted, that it would be expedient to grant to 
 Dana and others leave to build a bridge over the waters of 
 Charles river from West Boston to Cambridge on certain con¬ 
 ditions. They further report, that they have considered the 
 memorial of the college, and that they think it will be expedi¬ 
 ent to grant to that corporation the sum of 450/. [as amended, 
 300/.] annually, during the term of twenty [as amended, forty] 
 years, and for such further time as the legislature may hereaf¬ 
 ter direct. They further report, “ that after attending to the 
 memorial of the proprietors of Charles river bridge, and hearing 
 them fully on the subject, they are of the opinion that there is 
 no ground to maintain, that the act incorporating the proprietors 
 for the purpose of building a bridge from Charlestown to Bos¬ 
 ton, is an exclusive grant of the right to build over the waters 
 of that river; but considering the erection of Charles river 
 bridge was a work of magnitude and hazard, and that great 
 benefits have arisen to the public from the success of that en¬ 
 terprise, and considering also that the erection of the proposed 
 bridge may diminish the emoluments of the proprietors of 
 Charles river bridge, which may operate as a discouragement 
 to great and beneficial undertakings in future, the committee 
 think it reasonable and proper that a further time of twelve [as 
 amended, thirty] years be granted to said proprietors to receive 
 and collect for their benefit the toll now established by law for 
 passing said bridge.” 
 
 On March 9, 1792, an act was passed, (St. 1791, c. 62,) 
 incorporating Dana and others, for the purpose of building a 
 bridge from the westerly part of Boston to Cambridge. This 
 act, for the purpose of reimbursing the corporation their ex¬ 
 penses in building and maintaining the bridge, and of indemni- 
 
48 
 
 fying them for their risk, grants them a certain toll for the 
 term of forty years, (§ 4). It provides (§ 5.), that at the ex¬ 
 piration of that term, the bridge shall be surrendered in good 
 repair to the commonwealth ; and (§ 6), that after the toll shall 
 commence, the corporation shall pay annually to Harvard Col¬ 
 lege the sum of 300/. during the term of forty years. In § 7, 
 8, it is said, “ And whereas the erection of Charles river bridge 
 was a work of hazard and public utility, and another bridge in 
 the place proposed for the West Boston bridge, may diminish 
 the emoluments of Charles river bridge, therefore, for the en¬ 
 couragement of enterprise,” be it enacted, &c. that the proprie¬ 
 tors of Charles river bridge shall continue to be a “ corporation 
 and body politic, for and during the term of seventy years, to 
 be computed from the day that said Charles river bridge was 
 completed and opened for passengers,” subject to the conditions 
 and regulations prescribed in their act of incorporation, and du¬ 
 ring the aforesaid term of seventy years they “ may continue 
 to collect and receive all the toll granted by the aforesaid act for 
 their use and benefit ; provided, however, they also continue to 
 pay annually to said Harvard College the sum of 200/. &,c.; and 
 at the expiration of said term of seventy years, said Charles 
 river bridge shall revert to and be the property of the common¬ 
 wealth, and shall be surrendered in good repair.” In § 9, “ it 
 is further enacted, that in consideration of the privileges in this 
 act granted to the proprietors of Charles river bridge, the said 
 proprietors shall relinquish the additional toll on the Lord’s day, 
 from and after the passing of this act.” 
 
 In 1800, upon an application to the legislature by the pro¬ 
 prietors of West Boston bridge for an extension of their inter¬ 
 est in the bridge, the college presented another memorial, in 
 which they set forth the grant to them of the ferry between 
 Boston and Charlestown, claiming it as a grant in perpetuity, 
 and praying that the reasonable claims and just interests of the 
 college may not be overlooked. It is stated in this memorial, 
 that in 1712, when, upon the petition of John Clark, a bridge 
 over Charles river was contemplated, it was done with “ an ex¬ 
 press reservation of the interest and revenue of the ferry to the 
 college,” and that the general assembly, of their own mere 
 
49 
 
 motion and sense of justice, directed the petitioner and a com¬ 
 mittee of the house of representatives to confer with the presi¬ 
 dent and fellows of the college on that affair. 
 
 In 1805 the proprietors of Charles river bridge chose a com¬ 
 mittee to defend the interest of the corporation against the at¬ 
 tempts of all other persons to erect another bridge over Charles 
 river to the town of Boston. This committee afterwards report¬ 
 ed, “ that according to their observation and judgment, the pub¬ 
 lic opinion in favor of another bridge from Charlestown has 
 continually gathered strength, from the real or pretended want 
 of a commodious avenue to the centre of Boston ; and believ¬ 
 ing that unless a law, authorizing a new bridge, should pass in 
 the course of one or two years, the zeal for such a project will 
 abate; and finally, being sensible that if a new bridge should 
 ultimately be built, every year’s delay will be of important value, 
 they have concluded that it would be highly prudent to assist 
 and promote the establishment of a street over the mill-pond, 
 from Charles river bridge to Middle street; and accordingly 
 have engaged, in behalf of the proprietors, to pay the sum of 
 12,000 dollars, to accelerate the making and finishing said 
 street,” &c. This report was accepted, and 10,500 dollars 
 appropriated to fulfil the engagements of the committee. 
 
 In June 1806 and January 1807, the college chose commit¬ 
 tees to present memorials to the legislature relative to a contem¬ 
 plated bridge or bridges over Charles river, and to take measures 
 to secure the interests of the college. 
 
 At the session of the legislature in June 1806, on the peti¬ 
 tion of Christopher Gore and others, praying leave to erect a 
 bridge from Lechmere’s Point, in Cambridge, to Barton’s Point, 
 in Boston, the petitioners were ordered to notify all parties, by 
 publishing the petition, and the order, in certain newspapers 
 printed in Boston, sixty days at least before the next session, to 
 appear and show cause why the petition should not be granted. 
 
 In a report of a committee of both houses, in February 
 1807, upon several petitions and remonstrances respecting the 
 bridge from Lechmere’s Point to Barton’s Point, the committee 
 say, that “ after examination and due reflection on the various 
 grants of bridges across Charles river, and the pretended cou- 
 7 
 
50 
 
 Aiding rights, they can discern nothing in the said grants or the 
 supposed rights of other corporations, or in the principles of 
 justice and equity, that can be construed into an abridgment of 
 the power of the legislature, to authorize the erection of any 
 other bridge.” 
 
 On February 27, 1807, an act was passed, authorizing the 
 building of the Canal bridge, from the northwestwardly end of 
 Leverett street, in Boston, to the east end of Lechmere’s Point, 
 in Cambridge. By this act the proprietors of Canal bridge are 
 to pay to the proprietors of West Boston bridge 333 dollars and 
 33 cents, for every year that both corporations shall exist; and 
 the proprietors of West Boston bridge are to continue to be a 
 corporation for the term of seventy years from the time when 
 Canal bridge shall be completed, and during that term are to 
 receive toll and to pay G66 dollars 66 cents annually to the col¬ 
 lege. The act contains no provision in favour of the propri¬ 
 etors of Charles river bridge. 
 
 By an act of June 21, 1806, the “ Proprietors of Prison 
 Point Dam Corporation ” were authorized to build a dam from 
 Prison Point in Charlestown to Lechmere’s Point in Cambridge, 
 and in 1815 and 1816 certain persons claiming to act under 
 the right granted to that corporation, built a bridge from Prison 
 Point to the Canal bridge, the junction being within the town 
 of Cambridge. 
 
 In January 1828, John Skinner and others offered a petition 
 to the legislature, alleging that the public convenience and ne¬ 
 cessity required another avenue between Charlestown and Bos¬ 
 ton, and praying to be empowered to build a bridge commenc¬ 
 ing on the southerly side of Charlestown square, and running to 
 a point on the Mill pond lands, near Mill creek, in Boston. 
 
 At the same session of the legislature, the proprietors of 
 Charles river bridge offered a memorial, in which they state, 
 among other things, that if the present bridge does not give 
 every reasonable facility and accommodation to the public, they 
 hold themselves ready to accomplish any thing, even to the ex¬ 
 tent of building another bridge, in any way pertaining to the 
 convenience and accommodation of the public; and that if the 
 avenue to the bridge on the Charlestown side is thought to be 
 
51 
 
 inconvenient, they are willing to make it of any given width 
 which the legislature may authorize. The memorial contained 
 a vote, “ that the proprietors of Charles river bridge will, at 
 any time hereafter, make all such additions, alterations and im¬ 
 provements in and upon said bridge and the avenues connected 
 with it, as the legislature shall at any time authorize and direct.” 
 
 The committee of both houses of the legislature, to whom 
 the last mentioned petition and memorial were committed, made 
 a report staling the grounds relied on in support of the petition, 
 and those taken on the other side. Of these last, one was, 
 “ that the grant of another bridge, with or without tolls, in whole 
 or in part, and without adequate indemnity to the proprietors of 
 the existing bridge, would be an infringement of their just rights 
 and a violation of the public faith.” The committee say, that 
 “ they are of opinion, that public convenience and necessity re¬ 
 quire, and that public justice does not militate against the grant 
 of a charter for another bridge from Charlestown to Boston, to 
 be erected within the termini and on the conditions prayed for 
 by the petitioners.” 
 
 The statute of 1827, c. 127, (passed March 12, 1828,) to 
 establish the Warren bridge corporation, authorizes the corpo¬ 
 ration to build a bridge across Charles river, from or near the 
 wharf in Charlestown, late the property of John Harris, de¬ 
 ceased, to the newly made lands in Boston, near the Mill creek. 
 By § 4, “ the corporation shall be holden to make compensation 
 to any person, persons or corporation, whose real estate shall be 
 taken for the use of said bridge,” and if there should be a dif¬ 
 ference of opinion as to the value of the same, either party 
 may apply to the Court of Common Pleas for a committee to 
 estimate the damage; “ provided, that in all cases either party 
 may claim a trial by jury, as in similar cases where lands are 
 taken for public uses.” In § 6, for the purpose of reimbursing the 
 proprietors the expenses of building and supporting the bridge, 
 the same toll is granted to them as was granted to the proprie¬ 
 tors of Charles river bridge, and when they shall be reimburs¬ 
 ed their expenses, with five per cent, interest thereon, the bridge 
 is to revert to and become the property of the commonwealth; 
 but the term for taking toll by the proprietors is not to exceed 
 
52 
 
 six years. By § 8, at the expiration of one year from the 
 time of opening the bridge for passengers, and annually there¬ 
 after until the bridge shall revert to the commonwealth, the 
 proprietors “ shall pay out of the income accruing from tolls, 
 one half the sum now required to be paid to Harvard Col¬ 
 lege or University annually by the proprietors of Charles river 
 bridge, and the said proprietors of Charles river bridge shall 
 be exonerated from paying to said college or university, so 
 much as is hereby required to be paid by the proprietors of the 
 Warren bridge.” 
 
 There was a meeting of the proprietors of Charles river 
 bridge, on April 1 , 1785, at which meeting the corporation was 
 organized. The bridge was finished and opened for passengers 
 on June 17, 1786. The aggregate of tolls received from June 
 1786 to January 1827, was 824,79S dollars. 
 
 In the depositions of witnesses it was stated, that for a long 
 time prior to 1785 there had been a regular ferry between Bos¬ 
 ton and Charlestown, which was reputed to belong to Harvard 
 College ; and that there was no other ferry nor any other regu¬ 
 lar established means of communication between the two towns. 
 The landing places were covered by the ends of Charles river 
 bridge. When the bridge was built, it accommodated the same 
 line of travel as the ferry, so that immediately after the bridge 
 was opened for travellers, the ferry boats ceased to be used. 
 From that time there was no ferry or other regular means of 
 communication across Charles river between Boston and 
 Charlestown, except by this bridge, until the West Boston bridge 
 was erected under the act of 1791. 
 
 The proprietors of Charles river bridge took double toll on 
 the Lord’s day for several years; but about the time of passing 
 the act of 1791, or soon after the West Boston bridge was built 
 (the witnesses could not specify the precise time), they ceased 
 to demand the double toll, and it has never since been exact¬ 
 ed. One witness recollected that he paid double toll once after 
 the 22nd of May 1792. The records of the proprietors did 
 not contain any vote or directions to their agents to discontinue 
 taking the double toll ; and by the rules of the corporation, it 
 is made the duty of the clerk to record the votes and transac- 
 
53 
 
 tions of the stockholders and of the directors. Persons have at 
 all times since the bridge was built, both before and after 1792, 
 crossed Charles river in boats, on Sundays and other days, and 
 there was no evidence that they were ever prohibited from cross¬ 
 ing in any direction : neither was there evidence that the owners 
 of the boats had ever demanded toll. 
 
 The distance between the northerly ends of Charles river 
 bridge and Warren bridge, on the Charlestown shore, is 260 feet. 
 The avenues from them lead to Charlestown square, converging 
 from the bridges to the square, where the distance between them 
 is 26 feet 3 inches. The distance from the northerly end of 
 Charles river bridge to the square is 426 feet; and the distance 
 from the northerly end of Warren bridge to the square, is 390 
 feet. Charlestown square is the principal place of business in 
 that town, and through which much the greatest part of the 
 travel between Boston and Charlestown usually passes. The 
 distance between the southerly ends of the bridges, on the 
 Boston shore, is 915 feet in a direct line across the water. 
 Charles river bridge communicates with Charlestown street and 
 other streets, leading into the city of Boston. Warren bridge 
 communicates with Haverhill and Causeway streets leading into 
 the city. Charlestown and Haverhill streets are the principal 
 avenues leading respectively from the two bridges into the 
 central part of Boston and the part at which the mercantile busi¬ 
 ness is chiefly transacted. These two streets converge from the 
 bridges and intersect each other at a point on the mill-pond, 
 so called. The distance from the southerly end of Warren 
 bridge to the point of intersection is about 1463 feet, and from 
 the southerly end of Charles river bridge to the same point is 
 about 1385 feet. Warren bridge is 1390 feet long, and Charles 
 river bridge is 1323 feet. So that the whole distance from 
 Charlestown square to the intersection of Charlestown and 
 Haverhill streets, is 3134 feet by the way of Charles river 
 bridge, and 3243 feet by the way of Warren bridge. 
 
 Warren Bridge would accommodate the whole of the travel 
 which now passes over Charles river bridge, and the whole 
 travel which will pass over Warren bridge, would, if that bridge 
 had not been erected, pass over Charles river bridge. Persons 
 
54 
 
 going from Charlestown square to the westerly part of Boston, 
 would probably go over Warren bridge, the distance being less 
 than over Charles river bridge ; to other parts of the city the 
 distance is not less by the way of Warren bridge.* 
 
 In Charlestown, at the distance of 1300 feet from Charles¬ 
 town square, is a street, called Austin street, leading from Main 
 street to Prison Point. Austin street, Prison Point bridge 
 and Canal bridge, afford a convenient avenue from the upper 
 part of Charlestown to the westerly part of Boston, and many 
 persons pass that way; but in comparison with those who pass 
 over Charles river bridge, their number is small. 
 
 The end of Warren bridge on the Boston shore is on what 
 constituted, in 1786, the old Mill Pond, and at that time the 
 land to a considerable distance east and west was covered with 
 water. The southerly end of Charles river bridge was placed 
 on the most westerly part of Boston at which a bridge could 
 then be conveniently placed on solid ground, leading from 
 Charlestown square to the central part of Boston. The wester¬ 
 ly part of Boston, in 1786, contained scarcely any inhabitants. 
 The population and business of that part of Boston which 
 lies west and south of a continuation of the line of Charles river 
 bridge, has increased since 1785 much more than the popula¬ 
 tion and business of the part which lies east and north of the 
 same line. Much the greater part of the inhabitants of Boston 
 
 * The map, though perhaps not exact in regard to distances, shows 
 with sufficient accuracy the relative situation of the several bridges 
 and ferries in the neighbourhood of Boston, which are referred to in the 
 case. They are denoted by numbers as follows :— 
 
 1. Charles river bridge. 
 
 2. Warren bridge. 
 
 3. West Boston bridge. 
 
 4. Canal (often called Craigie’s) bridge. 
 
 5. Prison Point bridge. 
 
 6. Malden bridge, at the place of Penny ferry. 
 
 7. Chelsea bridge. 
 
 8. Winnesimet ferry. 
 
 9. South Boston bridge. 
 
 10. South Boston free bridge. 
 
 11. Cambridge bridge. 
 
55 
 
 reside to the west and south of a line formed by a continuation 
 of Haverhill street. The number of inhabitants in Boston in 
 17S5 was conjectured to be about 18,000; in 1825 it amount¬ 
 ed to 58,281. The inhabitants of Charlestown in 1785, were 
 supposed not to exceed 1000; in 1820 the number amounted 
 to 6,591. The population of the neighbouring towns has like¬ 
 wise increased very much since 1785. 
 
 The act of 1784, incorporating the proprietors of Charles 
 river bridge, was at an early period recorded in their book of 
 records, but no vote accepting that act, previous to one passed 
 in 1826, is found on their records. At a meeting of the pro¬ 
 prietors July 13, 1802, it was voted, that the clerk be directed 
 to record the parts of the act of 1791 which relate to the 
 Charles river bridge. At a meeting February 15, 1826, the 
 proprietors recite, that an act was passed on the 9th of March 
 1792, for incorporating the proprietors of West Boston bridge ; 
 that they had remonstrated against the erection of that bridge 
 as an infringement of their rights, and had claimed an indemni¬ 
 ty, and the provision in that act extending their interest in their 
 bridge for the term of seventy years &ic. was taken, deemed 
 and accepted by them as an indemnity for the loss and diminu¬ 
 tion of emoluments which they would sustain by reason of the 
 erection of the new bridge ; that the act provided that they 
 should relinquish the additional toll on the Lord’s day, and that 
 they did, from and after the passing of the act, relinquish it; 
 and that by such relinquishment, by ordering such clauses in 
 the act as related to them to be recorded among their records, 
 and by divers other proceedings, they manifested their accept¬ 
 ance of the act, but that no express vote appears on their 
 records accepting the same ; they then say, “ Now therefore, 
 as well for the purpose of ratifying and confirming all the acts, 
 doings and proceedings of this corporation, its officers and 
 agents, manifesting an acceptance of the provisions of said act, 
 as for placing on their records an express vote to that effect, 
 voted, that an act passed on the 9th day of March 1792, enti¬ 
 tled, &c. with all the terms, conditions and limitations therein 
 contained, so far as the same in any manner apply to this cor¬ 
 poration, be and the same are hereby accepted.” 
 
56 
 
 After West Boston bridge was built, a great proportion of the 
 travel to Boston which passed through Cambridge, and which 
 before that time passed over Charles river bridge, was divert¬ 
 ed and passed over West Boston bridge. When Canal bridge 
 was erected, which was in IS 16, it diverted travel from both of 
 the other bridges. 
 
 The proprietors of Warren bridge were organized April 14, 
 1828, under their act of incorporation. A by-law was passed 
 on that day, authorizing the directors to build the bridge. On 
 December 25, 1S28, the bridge, being completed, was opened 
 for passengers. 
 
 The tolls received at Charles river bridge from tbe 5th to 
 the 20lh of January 1829, being sixteen days, amounted to 
 466 dollars. The amount of tolls received in the same period 
 at Warren bridge was 707 dollars. From January 5, 1829 to 
 April 2, the amount of tolls at Charles river bridge was 2423 
 dollars, and at Warren bridge, 3755 dollars. The amount 
 received at Charles river bridge from December 25, 182S, 
 to June 30, 1S29, was 6525 dollars; the amounts received 
 during the corresponding periods of 1825 and 1826, of 1S26 
 and 1827, and of 1827 and 1828, were respectively, 15,631 
 dollars, 15,356 dollars, and 14,911 dollars. 
 
 At a meeting of the directors of Charles river bridge corpo¬ 
 ration, September 22, 1786, it was voted, “ that the treasurer 
 have an order to pay the corporation of Harvard College.” 
 On October 20, 1786, they voted that the treasurer pay the 
 college “ to the first of October instant, and after that to pay 
 them quarterly.” There is no vote on the records of the pro¬ 
 prietors of Charles river bridge by which they agree to be bound 
 to pay the college. The foregoing votes are the only ones 
 found relating to the subject. The annuity of 200/. reserved 
 to the college by the act of 1784, has been received by their 
 treasurer from the treasurer of the bridge, in quarterly pay¬ 
 ments, ever since October 1 , 1786. The payment made on 
 that day was 56/. 13s. Ad. and was in full to that date. 
 
 On July 7, 1829, the treasurer of the college received of 
 the treasurer of Warren bridge 166 dollars 67 cents, for six 
 months’ annuity, from December 25, 1828, to June 25, 1829 ; 
 
57 
 
 the payment being made in pursuance of the provision in the 
 act incorporating the proprietors of that bridge. 
 
 Formerly there was a ferry, called Penny ferry, over Mystick 
 river, leading from Charlestown and Malden. About the year 
 1787, certain persons incorporated for the purpose, built Malden 
 bridge at the same place, whereby the ferry was destroyed. 
 There was no evidence that any compensation was made to the 
 owner of the ferry. 
 
 About the year 1S03, Chelsea bridge was built over Mystick 
 river between Chelsea and Charlestown. This bridge is about 
 a mile and a quarter from Malden bridge, and the end on the 
 Chelsea shore is not more than fifty rods from the ferry-ways 
 on the same shore, of Winnesimmet ferry. This ferry be¬ 
 tween Chelsea and Boston is about a mile and three quarters 
 in length, across an arm of the sea. Chelsea bridge diverted 
 a great deal of travel from Malden bridge, but in the act of 
 March 6, 1802, authorizing the erecting of it, there is a recital, 
 that it is agreed that the Malden bridge corporation shall have 
 the property of half of the Chelsea bridge and pay half of the 
 expenses of the same bridge. The Winnesimmet ferry u T as 
 much injured, first by the erection of Charles river and Mal¬ 
 den bridges, and afterwards by the erection of Chelsea bridge; 
 but the owner of the ferry never received any compensation 
 for these injuries, though he presented to the legislature a re¬ 
 monstrance against the erection of Chelsea bridge. 
 
 The free bridge from Boston to South Boston diverted much 
 travel from the old bridge between these two places ; and the 
 mill-dam between Boston and Roxbury caused a diversion of 
 travel from West Boston bridge ; but in neither case did the 
 legislature provide for an indemnity to the suffering party. 
 
 It did not appear, that in either of the cases before mention¬ 
 ed, the party sustaining damage had resorted to any legal 
 process to obtain redress. 
 
 Shaw for the plaintiffs. The facts stated in the bill are in 
 general admitted by the defendants. Of the allegations denied 
 in the answer, one is, that there was an ancient ferry from Bos¬ 
 ton to Charlestown and no other convenient mode of transpor¬ 
 tation between the two towns. The proof of this allegation 
 8 
 
58 
 
 rests in legislative acts, tradition, history and ancient records. 
 The evidence establishes the fact, that the ferry had its com¬ 
 mencement as early as the year 1G31. 
 
 The defendants deny that the proprietors of Charles river 
 bridge ever accepted the act of 1784. It appears, that they 
 organized themselves as a corporation immediately after the act 
 was passed, and built the bridge. These facts are sufficient 
 proof of an acceptance. 
 
 It is further denied, that the ferry was granted to Harvard 
 College. We rely on the act of the general court of 1640, 
 which declared, that “ the ferry between Boston and Charles- 
 town is granted to the college,” and the subsequent acts which 
 are in the case, recognising and confirming the grant; and on 
 the proceedings of the college in relation to the ferry. Even 
 before the year 1640 the profits were received by the college, 
 and they were the reputed owners from that period until the 
 year 1786. 
 
 If the college owmed the ferry, the defendants deny that the 
 legislature could grant it to the plaintiffs. But the college ac¬ 
 quiesced in the transfer, upon receiving an annuity in re¬ 
 compense. The defendants say that the college did not assent 
 to the grant of the plaintiffs’ charter, and had no knowledge of 
 it; but the receipt of the annuity implies assent, as well to the 
 extension of the charter as to the original grant; and in the me¬ 
 morial of the college in 1792, their assent to the charter is ex¬ 
 pressly recognised. 
 
 The defendants deny that the act of 1791 was accepted by 
 the plaintiffs. Their proceeding in conformity to its provisions 
 was an acceptance; and further, that act being in their favor, 
 an acceptance is to be presumed. But, ex majori cauteld, be¬ 
 fore the expiration of the first grant they passed a vote express¬ 
 ly accepting the extension of their charter. 
 
 It is denied that there was any vote to relinquish the double 
 toll on Sunday. Such a vote was not necessary. Simply 
 omitting to take the double toll was sufficient; and it appears 
 that the plaintiffs have never exacted it since 1792. 
 
 The defendants deny that the plaintiffs have paid to the col¬ 
 lege the annuity provided for in the acts. The proof of the 
 payment is complete. 
 
59 
 
 They deny that they had an intent to divert the toll from our 
 bridge. Our allegation was made without much consideration, 
 but it is sustained by the evidence. For in the defendants’ pe¬ 
 tition to the legislature, they set forth the necessity of relief 
 from the burden of heavy tolls, which the public now pay at 
 Charles river bridge, (though it is difficult to perceive how 
 another bridge with the same tolls will relieve the public,) and 
 that the proprietors of Charles river bridge have already re¬ 
 ceived a much greater compensation than was contemplated by 
 the legislature. 
 
 They deny the allegation, that the corporation defendant have 
 no real or personal estate to respond damages which the plain¬ 
 tiffs may recover for any injury they may sustain. Whether 
 they have such property or not, depends on the question, wheth¬ 
 er they have a right to take toll. 
 
 They deny that all the travel referred to in the bill has al¬ 
 ways heretofore, and must, as the highways now are, pass over 
 Charles river bridge, if the Warren bridge should not be con¬ 
 structed. Our allegation is to be taken in connexion with the 
 rest of the bill. It means that the direct travel between Bos¬ 
 ton and Charlestown would pass over our bridge; and this is 
 proved by the evidence in the case. It is true there is a w r ay 
 over Canal bridge and Prison Point dam bridge, but that is 
 through Cambridge. We do not allege that there is no cir¬ 
 cuitous travel between Boston and Charlestown. 
 
 They deny that the college discontinued the ferry. In 
 a technical sense it may be true ; but in a popular sense it is 
 otherwise, for it is clearly proved that the boats ceased to ply, 
 after the bridge was finished. 
 
 They allege that our bridge is a monopoly. A monopoly 
 gives an advantage without a consideration. But here there 
 was a consideration. They say that a grant of exclusive privi¬ 
 leges, except for services already rendered, is contrary to the 
 bill of rights. Can any good reason be assigned why such a 
 grant should not be made in consideration of future services ? 
 Patents under the laws of the United States are always granted 
 with a view to subsequent benefit to the public. It is said that 
 the erecting and maintaining of our bridge were not contem- 
 
60 
 
 plated by the legislature as highly important and beneficial ser¬ 
 vices to be rendered to the public ; in answer, we would only 
 refer to our act of incorporation. 
 
 The defendants do not distinctly deny that the Warren 
 bridge will accommodate the same line of travel as our bridge ; 
 'and it appears in fact, that of the tolls taken at both bridges, 
 about two thirds are received at the Warren bridge. 
 
 The great question in the case is, whether the plaintiffs have 
 an exclusive right to maintain a bridge and collect the tolls ; ex¬ 
 clusive to the extent set forth in their bill, so that the erection 
 of the Warren bridge is, in respect to the plaintiffs, a nuisance. 
 
 By the operation of their act of incorporation, by their ac¬ 
 ceptance of it, and by the assent of the college, they became the 
 successors and assignees of the college in regard to this ancient 
 ferry. The word assignment is to be taken in relation to the sub¬ 
 ject-matter. Here three parties must concur. The government 
 must yield the franchise of building a bridge over navigable 
 waters, in lieu of the ferry ; the college must give up the ferry ; 
 and the plaintiffs must accept both. The plaintiffs are as¬ 
 signees in equity of the ferry right. The owner of a ferry can¬ 
 not let it go down and build a bridge in its stead, without a 
 grant. It would be a usurpation. Pain v. Patrick, 3 Mod. 
 294. The college would have been indictable, had they not 
 been excused by the legislature, for letting the ferry go down, 
 for a ferry is publici juris, and all the subjects have an interest 
 in it. Pain v. Patrick, uhi sup. What is the nature of a 
 ferry ? It is a franchise ; a right and duty to keep boats for 
 the transportation of passengers. It is an incorporeal heredita¬ 
 ment. In a ferry are embraced several rights :—I. A right to 
 use the land on each side of the water as a landing-place. 
 Ipswich v. Browne, Sav. 11, 14 ; Rex v. Nicholson, 12 East, 
 330 ; Peter v. Kendal, 6 Barn. & Cresw. 703. 2. The right 
 
 of franchise ; which may be in the government, a subject or a 
 corporation. 3. The jus publicum, or the right of all the sub¬ 
 jects to use the ferry. 4. The jus regium, or the right of the 
 government to make salutary regulations concerning the ferry. 
 5. The eminent domain or the right of appropriating the pro¬ 
 perty or franchise to the public use, when necessary to the pub- 
 
61 
 
 lie welfare. 2 Dane, 683, tit. Ferry, cites most of the author¬ 
 ities. 
 
 The evidence that it was intended that the proprietors of 
 Charles river bridge should be the owners of the ferry, is their 
 act of incorporation. The compensation given by them for the 
 ferry shows that the bridge was to be a substitute. It was a 
 matter of purchase. The right is saved to the college, of hav¬ 
 ing, at the expiration of forty years, afterward extended to 
 seventy, the same revenue which it would then have had from 
 the ferry in case the bridge had not been built. The bridge 
 too is built at the place of the old ferry-ways. 
 
 The plaintiffs having then become the owners of the ferry, it 
 is to be considered how far the franchise was exclusive. We 
 say that the government were precluded from establishing 
 another ferry between the two peninsulas of Boston and 
 Charlestown ; and though it is sufficient for us to show that 
 there was no right to set up another ferry within a few feet of 
 the old landing places, yet the evidence is conclusive of our 
 right to the extent just stated. All the other bridges over Charles 
 river connected with Boston are between Boston and some 
 other town than Charlestown. 
 
 Without defining precisely what are the limits to which the 
 exclusive right of a ferry extends, it is clear that it must have a 
 reasonable extent, and at- all events, a new ferry must not ac¬ 
 commodate the same line of travel. “ If a ferry is erected on a 
 river, so near another ancient ferry as to draw away its custom, 
 it is a nuisance to the owner of the old one.” 3 Bl. Com. 219 ; 
 Tripp v. Frank, 4 T. R. 666 ; Ogden v. Gibbons, 4 Johns. 
 Ch. R. 159, 160. If the new one is erected very near to the 
 old one, it is by intendment of law a nuisance ; if at a consider¬ 
 able distance, the question of nuisance is to be tried by a jury. 
 The Warren bridge is between the same termini as the ferry, 
 and is incontestably so near as to draw away the custom. Yard 
 v. Ford, 2 Saund. 172. 
 
 Nor will the king’s grant prevent the new ferry from being a 
 nuisance to the old one, though an ad quod damnum may have 
 been executed. An ad quod damnum is issued ex majori cau- 
 tela. But the grant of a new ferry, fair or market, is always 
 
62 
 
 made on condition that it do not affect any existing ferry, fair 
 or market. But even if this clause were omitted, the law would 
 imply it and give a remedy in an action on the case for a nui¬ 
 sance. Yard v. Ford , 2 Saund. 172; 2 Inst. 40G; Rex v. 
 Sir Oliver Butler , 3 Lev. 222. 
 
 The right of the ferry then in the college being exclusive at 
 least so far as to embrace the place where the defendants have 
 built their bridge, the plaintiffs, having for a valuable considera¬ 
 tion succeeded to the owners of the ferry, must be deemed to 
 have the same exclusive right. After the passing of the act of 
 1784 and the acceptance of the annuity, the college would have 
 been liable to our action for a disturbance, if they had continued 
 to keep up a ferry, or to a quo warranto at the suit of the com¬ 
 monwealth. 
 
 But the plaintiffs are entitled to the right which they claim, 
 by their act of incorporation and the additional act of 1791. 
 These acts passed by the legislature, and accepted, acted upon 
 and complied with by the plaintiffs, constitute a contract , by' which 
 the plaintiffs acquired an incorporeal hereditament; being a valua¬ 
 ble property, consisting in the franchise of being a corporation and 
 taking the tolls mentioned in the acts, for the term of seventy 
 years. By the constitution of the United States, the legislature 
 had no right, directly or indirectly', to impair this contract in the 
 slightest degree. Fletcher v. Peck, 6 Cranch, 87 ; New Jersey v. 
 Wilson, 7 Cranch, 1 G4 ; Tcrrett v. Taylor, 9 Cranch, 49 ; Dart¬ 
 mouth College v. Woodward, 4 Wheat. 516; Green v. Biddle, 
 8 Wheat. 84 ; JVyman v. Southard, ibid. 50. 
 
 What then is the true construction of this contract, and the 
 extent of the grant ? 
 
 It was intended to be a beneficial grant. The bridge is recit¬ 
 ed to be a work of public utility and of great hazard. The 
 proprietors are to erect and maintain it at their own charge, and to 
 pay an annuity to the college, and at the termination of their 
 charter, are to surrender the bridge to the government in good 
 repair. The toll is granted for their “ sole benefit ” for the 
 purpose of reimbursing them their expenses. 
 
 But in order to be beneficial, the grant must be exclusive. 
 The contemplated reimbursement depended upon receiving the 
 
63 
 
 tolls at the rates specified, upon all the carriages &c. therein 
 mentioned, including the whole line of travel between the termini. 
 The rates of toll being fixed, if another bridge is placed so as 
 to take a portion of the carriages &e. in the same line of travel, 
 at the same or a reduced rate of loll or without toll, the toll es¬ 
 tablished for the plaintiffs’ sole benefit is in part taken away. 
 The income thus reduced may not be sufficient to keep the 
 bridge in repair, but the plaintiffs are notwithstanding obliged to 
 keep it in repair and to pay the college annuity. 
 
 A grant is always to be so construed as to effect the intent 
 of the parties, and a necessary implication will have the same 
 force as express terms. Although not expressed, the grantee 
 is to have all that is essential to the taking and enjoying of the 
 thing granted. Co. Lit. 56 a; Finch’s Law, 100; Plowd. 
 317 ; Darcy v. Askwith, Hob. 234 ; Liford’s case, 11 Co. 52 ; 
 Perk. § 111, 116 ; Bro. Abr. Incidents, pi. 8, and Nusans, pi. 
 14, cites 9 E. 4, 35 ; Saunders’s case, 5 Co. 12; 1 Wms. 
 Saund. 323, note 6 ; Allen’s case, Owen, 113; Gayetty v. 
 Bethune, 14 Mass. R. 56. What was the substance of this 
 grant ? Not the strip of land forty feet wide occupied by our 
 bridge ; not a right of way ; not a mere license to build a 
 bridge over navigable waters ;—the substance of the grant was, 
 the right to take certain tolls for certain carriages &tc.. on a given 
 line of travel. In order to be beneficial it must be exclusive. 
 
 If we attempt to ascertain the intent of the parlies from the 
 nature and subject-matter of the grant itself, we come to the 
 same result. The construction uniformly put upon similar 
 grants, whether for ferries, turnpike roads, bridges, or the like, 
 is, that the grant of the tolls upon passage necessarily excludes 
 such competition as would materially diminish the tolls. New¬ 
 burgh Tump. Co. v. JVliller, 5 Johns. Ch. R. 112; Ogden v. 
 Gibbons, 4 Johns. Ch. R. 161 ; Livingston v. Dan Ingen, 9 
 Johns. R. 568, 573. 
 
 The intent of the parties will be rendered still more clear, if 
 the charter is considered in reference to the local circumstances 
 of the bridge and its termini, and the object had in view at the 
 time of the grant. The object expressed in the title of the act, 
 was to build a bridge between Boston and Charlestown. At 
 
64 
 
 that time the two peninsulas approached each other in a manner 
 very different from what they do at this day, and the streets on 
 both sides led towards the termini of the bridge. All the travel 
 between Charlestown square and Boston must have been con¬ 
 templated in the act. 
 
 One mode of determining whether the plaintiffs have any 
 exclusive right to the franchise of taking toll is, by inquiring 
 whether they could have maintained any action for injurious 
 competition. Toll bridges are rare in England, and therefore 
 the authorities relate more frequently to ferries. A ferry is a 
 franchise derived from the king’s prerogative, which cannot be 
 set up without the king’s license. When so erected, a person 
 cannot erect another to the nuisance of it. Churchman v. Tun- 
 stal, Hardr. 163. If he does, an action on the case lies. 3 
 Bl. Com. 318 et seq. And such action lies, notwithstanding 
 the second ferry may have been set up under the king’s license 
 and after an ad quod damnum executed. Hale De Port. Mar. 
 (Hargr. Tr.) 59 ; Rex v. Sir Oliver Butler, 3 Lev. 221 j 
 
 5. C. 2 Ventr. 344. A scire facias for repealing a patent may 
 be sued by a person prejudiced thereby, as well as by the king. 
 Brewster v. Weld, 6 Mod. 229 ; Com. Dig. Patent, F, 4, 5, 
 
 6, 7; 2 Wins. Saund. 72, note 4 ; 4 Inst. 88. It is clear then, 
 that an action will lie for a disturbance in fact of a ferry; and 
 this proves that a right of ferry is an exclusive franchise. 
 
 In this respect a bridge is like a ferry. It cannot be set up 
 without the king’s license. Either is a part of a highway. In 
 erecting a bridge there is a greater outlay of money, on the 
 sole chance of being reimbursed by the tolls ; so that the case 
 is stronger than that of a ferry. 
 
 Without reference to the act incorporating the proprietors of 
 the Warren bridge, the plaintiffs have made out, prima facie, a 
 case of property. The defendants deny the exclusive right 
 which we claim, and they set up their own right under their act 
 of incorporation. 
 
 The defendants say we have only a license to erect a bridge ; 
 a license to use a strip forty feet wide, of flats and river, and to 
 get all the tolls we can of persons going over the bridge. A 
 license is merely for the private convenience of the grantee, as 
 
65 
 
 to build a wharf or dam for private use ; a bridge ex vi termini 
 implies public use. The proprietors of a bridge would be in¬ 
 dictable for suffering it to be out of repair. 
 
 The defendants justify and claim a right to erect and main¬ 
 tain their bridge, without compensation to the plaintiffs for the 
 loss they may sustain, by force of the act of the legislature. 
 
 We say this act does not purport to divest, restrain or limit 
 the rights of Charles river bridge. It is in its terms simply a 
 grant. It is therefore to be construed as an act granting such 
 rights as the legislature had a right to grant, and no more. As 
 against the public, it gives the grantees a right to obstruct navi¬ 
 gable waters and to take toll; but it does not purport to author¬ 
 ize an invasion of private rights. And if it did in the most ex¬ 
 press terms, it would be merely void and inoperative. It 
 follows, that if the Warren bridge is an encroachment upon 
 the rights of the plaintiffs, the defendants are amenable to them 
 in the same manner and to the same extent as if there had been 
 no legislative act. Jackson v. Catlin, 2 Johns. R. 248 ; Cat- 
 lin v. Jackson , 8 Johns. R. 406. 
 
 The case then is brought to this question, whether, if no legis¬ 
 lative act had been passed, the plaintiffs could maintain an ac¬ 
 tion against the defendants. The grant to the plaintiffs was, to 
 some extent, exclusive, or it was simply a license to use a strip 
 of land and water forty feet wide and take toll of such persons 
 as should pass over it. If it was in any degree exclusive, either 
 by express terms or by necessary implication, the legislature 
 are in that degree restrained from making any other grant. If 
 the plaintiffs had only a license, as above mentioned, then the 
 defendants, without any act of the legislature, might have erect¬ 
 ed another bridge by the side of Charles river bridge immedi¬ 
 ately after this bridge was built and before the plaintiffs had re¬ 
 ceived any benefit from it, and yet would have been liable 
 to no action by the plaintiffs ; and it is no answer to say they 
 would have been liable to an indictment for a public nuisance. 
 
 The only way of avoiding the alternative above stated, is to 
 maintain, that the grant to the plaintiffs was to a certain extent 
 exclusive, but that such exclusive grant was subject to the implied 
 condition, that whenever the public exigency should require anoth- 
 9 
 
66 
 
 er bridge within the limits of such exclusive grant, the government 
 reserved to itself the right, without compensation or indemnity, to 
 erect such other bridge, and that of this exigency any future 
 general court were to he the sole and exclusive judges. It is 
 only necessary to state this proposition to show its inconsistency 
 with all sound and just notions of private right. In a matter 
 of contract between the government and its subjects, in relation 
 to property, the grant of a particular revenue or toll, exactly 
 specified, for a definite term, without any apparent reserve or 
 condition, there is a tacit reservation on the part of the govern¬ 
 ment of a right to resume, within the term, the whole substance 
 of the grant or to convey it to others ! A doctrine so danger¬ 
 ous derives no sanction from the common law. In England, a 
 second grant, if it impairs a preceding one, let the public exi¬ 
 gency be what it may, is deemed void, not only as against the 
 first grantee, but as against the crown, it being considered as 
 irnprovidently made. How does this case of a franchise differ 
 from that of land, which is derived from government ? Land is 
 subject to be resumed for roads, &c. but it is upon granting an 
 adequate compensation. The substance of our grant is a right 
 to take tolls. This is the only beneficial part of it; all the 
 rest is burdensome. If the government have tacitly reserved 
 such a right as above described, they may determine how it 
 shall be exercised, and they may appoint a man to take the tolls 
 for their own use. And it is manifest from the Warren bridge 
 act, that the government are taking away the tolls for their own 
 benefit; for in six years, or sooner, that bridge is to revert to 
 the commonwealth. There will then remain twenty years be¬ 
 fore the charter of Charles river bridge will expire, during 
 which the government will be receiving the revenue of the 
 Warren bridge; nor must they omit to receive it, for then 
 that bridge wiil be a greater nuisance to us than it is at present. 
 Can the legislature thus draw into its treasury the tolls before 
 granted to us ? 
 
 The authority relied on by the defendants to erect their 
 bridge, is inoperative and void, in so far as it impairs the rights 
 of the plaintiffs ; being repugnant to the constitution of the 
 United States, by impairing the obligation of contracts; and 
 
67 
 
 repugnant to the same constitution and to the constitution of 
 Massachusetts, by appropriating the private property of the 
 plaintiffs to the public use, without providing any compen¬ 
 sation. 
 
 It has already been shown, that the acts of 1784 and 1791, 
 granting and extending the plaintiffs’ charter, constitute a con¬ 
 tract, and which is exclusive to a certain extent ; that the War¬ 
 ren bridge is erected within that extent ; and that it diminishes 
 in a great degree the amount of the plaintiffs’ tolls, and in the 
 same degree diminishes the value of their franchise. It has 
 been determined, that the clause in the constitution of the Uni¬ 
 ted States applies as well to executed as to executory contracts ; 
 to grants, as well as to covenants and other contracts. Fletcher 
 v. Peck, 6 Cranch, 87. And any legislative act which impairs 
 the title or diminishes the value of the right, property or inter¬ 
 est created or vested by a grant, does impair the obligation of 
 a contract, and is thus far, and for this cause, null and void. 
 
 Has the Warren bridge act provided any compensation to the 
 plaintiffs, agreeably to the constitutions of this state and of the 
 United States ? 
 
 In the 10th article of our bill of rights, it is declared, that 
 “ whenever the public exigencies require, that property of any 
 individual should be appropriated to public uses, he shall receive 
 a reasonable compensation therefor.” The provision in the 
 constitution of the United States is, “ nor shall private property 
 be taken for public use, without just compensation.” These 
 provisions, made for the security and protection of the subject, 
 are to have a benign and liberal construction. All kinds of 
 property are to be protected ; and “ taking ” or “ appropriating ” 
 necessarily includes all means by which the title or beneficial 
 interest in such property may be divested or diminished. The 
 construction uniformly put upon these clauses, and which is 
 necessary in order to render them effectual as security, has been, 
 that the provision for compensation must be made simultaneous¬ 
 ly with the act giving the authority to take the property, and un¬ 
 less this is done, the authority is void. Gardner v. JYewburgh, 
 
 2 Johns. Ch. R. 16S ; Perry v. Wilson, 7 Mass. R. 395 ; 
 Stevens v. Middlesex Canal, 12 Mass. R. 468; Callender v. 
 
68 
 
 Marsh, 1 Pick. 430 ; Vanhorne's Lessee v. Dorrance, 2 Dal¬ 
 las, 304. 
 
 In this case provision is not made for compensation. In the 
 8th section of the act of J827 it is provided, that until the 
 Warren bridge shall revert to the Commonwealth, the proprie¬ 
 tors shall pay out of the income accruing from tolls, one half 
 the'annuity required to be paid to the college by the proprietors 
 of Charles river bridge, and these proprietors are to be ex¬ 
 onerated from paying such half. Our consent to this arrange¬ 
 ment is not asked, and the payment by the Warren bridge is to 
 be made out of tolls to which we have a right. The 4th sec¬ 
 tion provides for an indemnity only where real estate shall be 
 taken. The legislature have no right to determine the nature 
 of the compensation, the amount of it, nor the mode in which 
 it shall be ascertained. The damages are to be determined 
 only by agreement or by a trial by jury. Vanhorne’s Lessee v. 
 Dorrance, 2 Dallas, 304. 
 
 In Day v. Savage, Hob. 87, an act of parliament, made 
 against natural equity, is said to be void. Perhaps the expres¬ 
 sion may be too strong, as courts in England are subordinate to 
 parliament; but here the Supreme Court is a co-ordinate branch 
 of the government, and any legislative act must be declared 
 void, so far as it conflicts with the constitution. Marbvry v. 
 Madison, 1 Cranch, 137; 1 Kent’s Com. 425; Wilkinson v. 
 Leland, 2 Peters’s Sup. Ct. R. 627. 
 
 The defendants allege that the legislature have always had 
 the control of navigable waters and of public highways, ferries 
 and bridges, and have been accustomed to proceed as they have 
 done in this instance, without making compensation. We deny 
 that there has been any such usage. But if there was before 
 the constitution, it was repealed by the constitution ; and if such 
 a usage has grown up since, it is repugnant to the constitution 
 and has no more validity than a law would have. 
 
 It is said too, that the increase of population required another 
 ■ bridge. If that were true, it would not impair the plaintiffs’ 
 rights. Mosley v. JValker, 7 Barnw. & Cress. 40 ; Mosley 
 v. Chadtvick, ibid. 47, note. They offered to furnish such fur¬ 
 ther accommodation for the public as the legislature should di-. 
 
69 
 
 rect. At any rate, the public exigency did not require that 
 their franchise should be taken away without compensation. 
 
 Several documents have been introduced, to show that the 
 government have the right of regulating ferries. But such a 
 right is not inconsistent with an exclusive property in the owner 
 of the ferry. The government have never claimed the right of 
 taking away tolls which they have granted. 
 
 Webster, on the same side, cited, to show that where there is 
 an existing franchise, no part of it can be regranted unless there 
 has been a forfeiture, Rex v. Passmore, 3 T. R. 199 ; Rex v. 
 Amery, 2 T. R. 565 ; Wales v. Stetson, 2 Mass. R. 143 ; 
 Rex v. Vice Chancellor fyc. of Cambridge, 3 Burr. 1656 ; 
 
 2 Bl. Com. 37 :—As to the nature of a ferry, Termes de la 
 Ley, voc. Ferry ; Com. Dig. Piscary B ; and how far it is a 
 monopoly, 17 Yin. 88, Prerogative fyc. J\I. b; 13 Vin. 208, 
 Ferry :—As to the rule for construing the king’s grant, and as 
 to the effect of subsequent usage in the construction of a grant, 
 17 Vin. 152, Prerogative fyc. O. c; Blankley v. Winstanley, 
 
 3 T. R. 286, 288, 291, note :—And to the point, that where a 
 franchise, which existed in the hands of a subject with certain 
 lights, revests in the king and is regranted, it passes with the 
 same rights, Palm. 78. 
 
 Aylwin for the defendants. By the civil and common law, 
 all navigable waters, inlets and arms of the sea, are recognised 
 as public property ; and roads, ferries and bridges are treated 
 as matters to be regulated by the sovereign authority. Inst. 
 lib. 2, tit. 1, § 2, 3, 4 ; Dig. lib. 39, tit. 2, l. 24 ; lib. 43, tit. 
 12, l. 4 ; Grot. lib. 2, c. 3, § 9 ; 2 Domat, Public Law, bk. 1, 
 tit. 8, § 1, no. 7 ; Vattel, bk. 1, § 100, 244, 245 ; Case of the Isle 
 of Ely, 10 Co. 141 ; Com. Dig. Chimin, A 1 ; Hale, Be Jure 
 JVlaris, part 1, c. 1 ; ibid. c. 3 ; 2 Inst. 38 ; 1 Hawk. P. C. c. 
 76, § 1 ; Finch’s Law, 164, c. 14; Hooker v. Cummings, 20 
 Johns. R. 100. So by the Feudal law. 1 Bl. Com. 264. That 
 they belong to the public domain and are subject to the control 
 of the state, the decisions of this Court abundantly testify. 
 Commonwealth v. Coombs, 2 Mass. R. 493; Hood v. Bighton 
 Bridge, 3 Mass. R. 267; Arundell v. M‘Culloch, 10 Mass. 
 R. 70; Commonwealth v. Charlestown, 1 Pick. 165. In 
 
70 
 
 Commonwealth v. Breed, 4 Pick. 404, the Court say, “ The 
 legislature has power to regulate and control all public highways 
 and the navigable waters within the limits of the state. This 
 poster has been exercised from the commencement of our gov¬ 
 ernment.” In the exhibits and in our statute books will be found 
 ample evidence in support of this declaration. Anc. Charters, 
 &c. 110, 280, 448, G23 ; St. 1796, c. 42. 
 
 Upon general principles therefore, and according to the ear¬ 
 liest usage, the general court had the power to pass the act 
 under which the defendants claim to erect their bridge, unless 
 there existed some particular restraint taking the case out of the 
 operation of their general jurisdiction.' The burden rests on the 
 plaintiffs to make out such restraint. 
 
 Before proceeding further, it may be well to examine wheth¬ 
 er the standing of the plaintiffs in court is made out by the 
 consistency of the proof with their allegations. 
 
 It is alleged in the bill, that the act of 1791 was duly accept¬ 
 ed and that the conditions on which it was to take effect were 
 complied with. This the defendants deny. The doings relied 
 on for proof of acceptance are the immediate entry on their 
 records, of the portions of the act relating to their corporation; 
 the discontinuance of the double toll ; and a formal vote of ac¬ 
 ceptance passed before the expiration of their charter. The 
 evidence proves that the entry referred to was not made till the 
 13th of July 1802, being ten years, instead of immediately af¬ 
 ter 1792. This entry, being an act in itself equivocal, was not 
 sufficient to show an acceptance, and it was not made in due 
 season. The vote of February 15, 1826, four months only 
 before the expiration of the forty years, was clearly too late. 
 The corporation had waited till the last moment, to ascertain what 
 might be the possible disadvantages of an acceptance, and find¬ 
 ing no burden, but on the contrary, immense benefits to flow 
 from it, they passed the formal vote now relied on. 
 
 In the amended bill the plaintiffs deny that they ever solicit¬ 
 ed the acceptance of the report of the joint committee of the 
 general court extending to them for twelve years the term of 
 taking toll, or the enlargement of it by the legislature to thirty 
 years. This then rebuts the presumption of an acceptance of 
 
71 
 
 the additional act, earlier than 1826, from its being for their 
 benefit. They assert that no application on their part was 
 made for the new grant. 
 
 The extension might have been to their detriment, as they 
 were required to relinquish the additional toll on Sundays ; and 
 the burden of maintaining the bridge during the enlarged period, 
 in case of casualties which they affected to dread, might have 
 more than counterbalanced the benefit. The stockholders 
 might have paused on this question. For this reason then their 
 assent is not to be presumed. Union Locks and Canals v. 
 Towne, 1 New Hamp. R. 44. 
 
 The proof does not show an immediate relinquishment of 
 double toll. The testimony of the witnesses on the part of the 
 plaintiffs is merely of a negative character; while one witness on 
 the part of the defendants testifies positively to the payment of 
 it on the first Sunday after the 22nd of May 1792. To fulfil 
 the intent of the legislature, there should have been an express 
 relinquishment by a vote ; otherwise there would be nothing to 
 bind the corporation. Ellis v. Marshall, 2 Mass. R. 269. 
 
 Where an act is to be done, and no time is prescribed in 
 which it is to be performed, it must be done within a reasonable 
 time. Co. Lit. 208. That ten years after March 9, 1792, was 
 not a reasonable time for the acceptance, can hardly admit of 
 a doubt. Hayden v. Stoughton , 5 Pick. 528. 
 
 The act incorporating the proprietors of Warren bridge, is 
 alleged by the plaintiffs to be invalid, because in effect it au¬ 
 thorized the taking of private property for the public use, with¬ 
 in the meaning of the constitution of the United States, and was 
 an appropriation of it for the like object, within the true intent of 
 the constitution of this commonwealth, which could not be done 
 without at the same time providing a reasonable compensation. 
 
 The foundation on which this objection rests is controverted 
 by the defendants. If any property has been taken, it is real 
 property, and by the 4th section a provision for indemnity is 
 made. 
 
 What is the nature of the property alleged to have been ta¬ 
 ken ? Is it real or personal ? A ferry is an incorporeal he¬ 
 reditament ; Co. Lit. 6 a ; and as considered by the plaintiffs 
 
72 
 
 themselves, a franchise having locality. It falls within the defi¬ 
 nition of the civil law, of immovable property, and of the com¬ 
 mon law, of real property. By the common law it might have 
 been demanded in a praecipe quod reddat; and by force of 
 St. Westm. 2, c. 25, an assise of novel disseisin was given for it. 
 2 Inst. 409 ; Humphreys on Real Prop. 8. 
 
 But the defendants deny that any property of the plaintiffs 
 has been taken or appropriated by the act in question. The 
 claim of the plaintiffs is, in reality, to a mere naked right; to 
 the exclusion of the public from the use of the navigable waters 
 of the commonwealth for the purpose of transportation. Such 
 a right cannot be property, within any known or practical mean¬ 
 ing of the term, nor, if infringed, is there a taking or appropria¬ 
 ting of property within the intent of either constitution. The 
 community, in their sovereign capacity, being the owners of these 
 navigable waters, possess the right of using them at their pleas¬ 
 ure, unless they have imposed some legitimate restraint on 
 themselves by compact. If they have not so restrained them¬ 
 selves, and they actually made such use of them as to affect the 
 interests of the plaintiffs, it is damnum absque injuria, and falls 
 clearly within the principle touching public rights, recognised in 
 the case of Callender v. Marsh, 1 Pick. 418. See also Thurs¬ 
 ton v. Hancock, 12 Mass. R. 220. 
 
 Have the legislature so restrained themselves that they could 
 not make the grant to the defendants, without the violation of a 
 prior contract ? 
 
 In opposition to the plaintiffs’ claim to an exclusive right, we 
 make several objections. 
 
 1. The ferry was not an ancient or prescriptive ferry, in 
 the legal import of those terms, as would seem to be implied 
 from the statement in the bill, but originated in a grant known 
 and shown to the Court. 
 
 This is clearly proved by the orders of the colonial govern¬ 
 ment and other evidence in the case. In Hull v. Horner, Cowp. 
 108, Lord Mansfield says, “ Any written evidence showing 
 that there was a time when the prescription did not exist, is 
 an answer to a claim founded on prescription.” Co. Lit. 
 115 a. 
 
73 
 
 2. The grant did not pass a franchise of a ferry, but merely 
 the liberty of receiving the profits ; and that only during the 
 pleasure of the government. 
 
 In construing the order of 1640, by which “the ferry be¬ 
 tween Boston and Charlestown is granted to the college,” the 
 general course of legislation on the subject of this and other fer¬ 
 ries may be well taken into view. In the preamble to a re¬ 
 vised statute dated 1636, 1640, 1642, it is recited, that the 
 government had given the revenue of the ferry for the encour¬ 
 agement of the college. Anc. Charters &c. 78. In 1659 the gen¬ 
 eral court order, that “ besides the profit of the ferry formerly 
 granted to the college, which shall be continued ,” 100Z. shall be 
 paid yearly to the college, and this to continue during the pleas¬ 
 ure of the country. Anc. Charters &c. 80. By a provincial 
 act of 1695 it is provided, that boats shall be constantly kept on 
 either side of the water at Charlestown ferry, the ferrymen on 
 each side to have a separate interest, and that the ferry shall not 
 be leased out otherwise ; and that all the members of the general 
 assembly shall be ferriage-free at all ferries, in their passing to 
 and from the assembly. Anc. Chart. &c. 281. The St. 9 Ann. 
 c. 1 , recites that the treasurer of the college had attended with 
 the lease of the ferry, which had several years to run, and enacts 
 that notwithstanding the lease , there shall be three sufficient suita¬ 
 ble boats , and that they shall be three several separate interests, 
 not all of one town. It appears from the college records, that 
 in 1780 the treasurer was directed to order the necessary re¬ 
 pairs of the sheds on each side of the ferry, and to lay the cost 
 before the general court for allowance. And further, the statute 
 of May 16, 1781, (St. 1780, c. 42,) passed after the formation 
 of the state constitution, manifests a continued control over this 
 public right. That act prohibited the ferrymen from making a 
 common stock of their interest, under a penalty ; required that 
 no master ferryman should be appointed by the college without 
 the annual approbation of the selectmen of Charlestown ; and 
 declared that the appointment of ferrymen by the college, should 
 not be for a longer term than one year. And last of all, the act 
 of 1784 incorporating the proprietors of Charles river bridge, 
 was made without asking the consent of the college and without 
 
 10 
 
74 
 
 their interfering in its enactment. It appears then that none of 
 the essential attributes of property belonged to or were exer¬ 
 cised by the college, except receiving the revenue. The legis¬ 
 lature constantly exercise the dominion which belongs to owner¬ 
 ship ; and although they do not withdraw the income, still they 
 exempt from ferriage whom they see fit, and prescribe the man¬ 
 ner in which the ferry shall be leased or managed ; and at last, 
 they deprive the college of the future increase of the income of 
 the ferry, and fix its rate at 200?. for forty years to come. 
 
 Further, the college could not have taken any thing under the 
 order of 1640, in the nature of an estate, for they were then a 
 voluntary association. They could not be grantees. They 
 were not incorporated until 1650 ; which is a strong circum¬ 
 stance to show that the grant was during the pleasure of the 
 general court. 2 H. 7, 13 , pi. 16. 
 
 3. If however the franchise of a ferry was granted, it was in 
 no sense exclusive of the right to grant other ferries or bridges, 
 but confined solely to the landing places. 
 
 The plaintiffs assert that the ferry had certain termini, 
 namely, the lower or southerly part of Charlestown and the 
 northerly part of Boston, and within these limits they allege it 
 to have been exclusive. In terms the grant contained nothing 
 exclusive, nor did it subject the college to any duty or obligation 
 whatever for the support of the ferry. 
 
 No judicial construction of an original grant of a ferry is to 
 be found in the English books. The cases relate solely to pre¬ 
 scriptive ferries; and although the foundation of these is pre¬ 
 sumed to he laid in grant, and in practice they have received a 
 most liberal extension, yet such a franchise excludes those only 
 who interfere without right or authority. Churchman v. Tunstal, 
 Hardr. 162; Blissettv. Hart, Willes, 508; Anonymous, 1 Ves. 
 sen. 476 ; Tripp v. Frank, 4 T. R. 668 ; Cruise’s Dig. tit. 
 34, § 8. 
 
 By the law of England, a ferry, although sui generis, is not 
 inconsistent with the general principles of that law regarding 
 highways. A public privilege and a private right unite to form 
 a ferry ; the public privilege of passing across the water, and the 
 private right of carrying passengers and receiving the toll. 
 
75 
 
 A prescription cannot be maintained against the public with¬ 
 out the existence of some equivalent. In general, it cannot be 
 claimed in a highway. In 22 Ass. pi. 58, it is said the com¬ 
 plaint was that the toll was outrageous, and it was claimed as 
 toll-thorough. Thorpe there said, that toll-thorough was an op¬ 
 pression of the people, and that it was against common right. 
 Toll-traverse may be by prescription or grant; but toll-thorough 
 cannot be by either grant or prescription. Fitz. N. B. (9 th ed.) 
 227, note c ; 2 Roll. Abr. 522, Toll. The inheritance of ev¬ 
 ery man in the king’s highway is prior to all prescription. Smith 
 v. Shephard, Moor, 574; Truman v. Walgham, 2 Wils. 296 ; 
 Keilw. 148, pi. 29. The king cannot grant toll to be taken in 
 the highway, which is free ; but pontage and murage may be 
 granted, because there is quid pro quo ; and no longer than the 
 bridge is maintained for the use of the subjects, or the wall shall 
 continue for the defence of the subjects, shall the toll be demand¬ 
 ed. Darcy v. Allin, Noy, 176. At least the prescription 
 must show an obligation to repair and maintain the w r ay, to en¬ 
 title the party to his claim of toll; and must reach back as far 
 as the reign of Richard I. 2 Bl. Com. 29 ; 2 Inst. 238 ; Co. 
 Lit. 1135 ; Gravesend case , 2 Brownl. & Gould. 181 ; JYotting- 
 ham v. Lambert, Willes, 111. The English courts hav r e been 
 anxious to narrow these exclusive claims. Wilkes v. Kirby, 2 
 Lutw. 1519. So in this state. Arundel v. M‘ Culloch, 10 Mass. 
 R. 70. 
 
 In the case at bar we contend, that there is neither a pre¬ 
 scription nor a grant of a franchise. The ferry could not have 
 been prescriptive, for there was no corresponding obligation im¬ 
 posed on the college to maintain it. But suppose there was 
 an absolute grant in 1640, we say it was confined to the re¬ 
 spective landing places of the ferry as they then existed. Webb's 
 case, 8 Co. 92. In Ipswich v. Browne, Savil, 11, 14, it was held, 
 that a ferry is in respect of the landing place, and not in respect 
 of the water. 13 Vin. 208, Ferry; Com. Dig. Piscary, B. 
 And in each ferry the land on both sides ought to belong to the 
 owner of the ferry. Ibid. 
 
 The plaintiffs must contend, that a grant of a license by 
 the legislature, coupled with an interest in its execution, not 
 
76 
 
 merely passes the license itself, but prohibits succeeding legisla¬ 
 tures from giving any other license of a like kind. The com¬ 
 mon law, it is apprehended, affords no countenance to such doc¬ 
 trine. The common law enables the owner of a franchise to 
 prohibit any one without license or authority, from exercising a 
 similar right to his prejudice. The text in the different abridge¬ 
 ments is general. It is said, “ If I have a ferry by prescription 
 or an ancient ferry, and another erects a ferry near the ancient 
 one, case lies.” 2 Roll. Abr. 140, pi. 4. Rolle cites 22 H. 6, 
 14 b, as the authority for holding it to be a nuisance. Comyn, 
 in bis Digest, tit. Action upon the Case for a JVuisance, A, quotes 
 Rolle, and adds no other authority except Churchman v. Tun- 
 stal, Hardr. 162, which disproves the position. Hale (in Fitzh. 
 N. B. 184, note a,) cites the same Year Book, 22 H. 6, 14, and 
 Blackstone (3 Com. 219) cites Hale. 
 
 The judicial colloquy recorded in the Year Book is shortly this. 
 On a question whether an action would lie for establishing a 
 second mill in the same town where there was already one, of 
 ancient continuance, it was resolved in the negative. Paston 
 puts this case. “ If I have a market on Saturday, and another 
 levies a market or a fair on the same day in a vill which is near 
 to my market, so that my market or fair is impaired, I shall have 
 against him an assise of nuisance or action on my case. And 
 the same law is, if I have of ancient time a ferry in one vill and 
 another levies another ferry near to my ferry, so that the profit 
 of my ferry is impaired by it, I shall have against him an action 
 on my case.” JVewton replies, “ Your case of a ferry differs 
 from the case at bar, for in your case you are holden to sustain 
 the ferry and to serve it and repair it for the ease of the com¬ 
 mon people, and may be grievously amerced ; and this is in- 
 quirable before the sheriff’s tourn, and also before the justices in 
 eyre.” Here the discussion was on a prescriptive ferry. That 
 the doctrine is true of a tvrongdoer's interfering with an ancient 
 ferry, we need no authority from the Year Book to prove. But 
 when it is pressed against one claiming to act under a license from 
 the government, the rule is carried to an unwarrantable extent. 
 Some express decision should be required. 
 
77 
 
 In Blissett v. Hart, Willes, 512, note a, it was held, that a 
 ferry is publici juris ; that it is a franchise ; that no person can 
 erect one without a license from the crown, and when one is 
 erected, another cannot be erected without an ad quod damnum. 
 If a second is erected without license, the crown has a remedy 
 by a quo warranto, and the prior grantee has a remedy by ac¬ 
 tion. 
 
 The expression that a second ferry may not be erected with¬ 
 out license, implies that with license it may be erected. 
 
 In 1 Hayw. N. Car. Rep. 459, on an appeal from an order 
 of the county court authorizing a ferry to be kept at or near the 
 place of one previously established, the Superior Court were 
 divided. Stone J. says, “ The county court are empowered to 
 establish ferries. They are the proper judges where it is fit to 
 establish them. There are two ferries established at the same 
 place in several parts of this state. This proves the power of 
 the county court to establish them.” See also Long v. Beard, 
 3 Murph. N. Car. Rep. 57; Stark v. JWGowen, 1 Nott & 
 M’Cord, 395. 
 
 It does not appear that an authority for setting up a ferry was 
 always considered indispensable by the English courts. The 
 great question in Churchman v. Tunstal was, whether the own¬ 
 er of land on each side of the river, who set up a ferry, was not 
 in effect authorized to do so by his ownership, without any li¬ 
 cense. An injunction was applied for to restrain the defendant, 
 who had set up a ferry within three quarters of a mile of an an¬ 
 cient ferry. The court (of Exchequer) refused the injunction, 
 because the privilege claimed came too near a monopoly and 
 restrained trade, and no precedent shown. The reporter adds a 
 “ query, for contrary to 22 H. 6, and to precedents in like cas¬ 
 es in this court.” It is said in 2 Anstruther, 608, that on a new 
 bill in 1660 before Hale B. the new ferry was suppressed. It 
 is somewhat strange, if this authority had been overruled, Har- 
 dres should not have known of it, when the supposed reversal 
 took place only a year after the decision, and that Hale should 
 not have mentioned it, in his note to Fitzherbert. It is observ¬ 
 able however, that the case is distinct in principle from the rule 
 we are now considering, as the defendant did not claim under a 
 license, but under a common law right. 
 
78 
 
 In the case of the lessees of the dean and chapter of Dur¬ 
 ham, 1 Yes. sen. 476, who applied for an injunction to restrain 
 certain watermen from using ferry-boats on the Tyne, Lord 
 Hardwicke did not appear to be willing to admit the ex¬ 
 clusive claim, nor did he advert to the necessity of an ad quod 
 damnum to justify the defendants. He denied the application, 
 upon the insufficiency of the affidavits to prove that boats enough 
 were kept to answer the wants of the population of Newcastle, 
 and he observed, “ this is like a ferry on the Thames and pas¬ 
 sage boats to Gravesend, which have a sole right of carrying, 
 yet other wherries do carry every day, and it is not held an in¬ 
 fringement of that right.” 
 
 The decisions in regard to fairs and markets, affirm the prin¬ 
 ciple, that with a license a second ferry may be set up. Unless 
 the new market is set up within seven miles of the old one, it is 
 not a nuisance ; and this without any ad quod damnum. Bract. 
 233 ; Fitzh. N. B. 184, note a. In Yard v. Ford , 2 Saund. 
 175, which was an action on the case for setting up a market 
 without any lawful warrant or authority, to the nuisance of an 
 ancient market, Twysden J. said that the plaintiff was entitled 
 to judgment, as the defendant was an apparent wrong-doer, but 
 “ that if the defendant had a patent to levy his market, perhaps 
 it might be more doubtful.” 
 
 It is not denied that the identical franchise cannot be bestow¬ 
 ed by the crown on a second grantee ; but that a grant of a 
 similar franchise or thing may be made upon an ad quod dam¬ 
 num, duly returned, is very clear. In Rex v. Sir Oliver Butler, 
 3 Lev. 220, a grant had been made upon a writ of ad quod 
 damnum to Butler, to have a market at Chatham; and on a sci. 
 fac. to repeal this grant, it was alleged that the city of Roches¬ 
 ter had a prior grant of a market within a mile and a half of 
 Chatham, and that the ad quod damnum had been executed 
 surreptitiously. The second patent was held void, but Levinz 
 adds, that “ the defendant sued another writ of ad quod damnum 
 and took a new patent, which was granted because a market at 
 Chatham u ? as very convenient, if not (absolutely) necessary in 
 respect of navigation, and the shipping and stores, and the la¬ 
 bourers about the shipping there.” 
 
79 
 
 Thus it appears, that the question whether the privilege claim¬ 
 ed is or is not a direct interference with an elder one, is left to 
 the traverse on the ad quod damnum. And no doubt it is prac¬ 
 tically decided by public convenience, as an inquiry of this 
 kind necessarily must be. If the public convenience counter¬ 
 balances the remote or consequential loss to the individual, then 
 the return would unquestionably be in favour of a new grant or 
 license. Hale De Portibus Maris , (Hargr. Tr.) 59, 60. 
 
 There is an analogy between the exercise or control of these 
 public rights, and the discontinuance of ways, and of passages 
 in navigable waters, which is another branch of prerogative 
 power entrusted to the executive authority for the public good. 
 These rights, as they affect the public, may not only be changed 
 by act of parliament, but by writ of ad quod damnum, and, 
 perhaps, by commissioners of sewers, if they found it would be 
 for the advantage of the whole land. Rex v. Montague, 4 
 Barnw. &l Cresw. 603; Fitzh. N. B. 226. 
 
 Further, if the owner of a market does not provide sufficient 
 accommodation for the public, he cannot maintain any action 
 for an interference with his right, against those who undertake 
 to supply his deficiency. Prince v. Lewis, 5 Barnw. & 
 Cresw. 363. 
 
 Now in the amended bill the plaintiffs admit, for the pur¬ 
 poses of this hearing, that public necessity or convenience 
 did require another bridge. If they had an exclusive right, 
 they ought to have supplied the want. Not having done so, the 
 legislature might authorize any one to perform this public duty. 
 In Mosley v. Walker, 7 Barnw. & Cresw. 52, cited on the 
 other side, Lord Tenterden says, “ We are not called upon, on 
 the present occasion, to lay down as a general rule and princi¬ 
 ple of law, that the grant of a market for the sale of certain 
 things necessarily carries with it an exclusion of the right of 
 sale of similar commodities in a private house, whether the market 
 is convenient or not.” The consideration failing on which the 
 grant was made, that is, the public convenience, no previous in¬ 
 quiry in order to put an end to it seems to be necessary. When 
 the deficiency is proved, it is a sufficient answer to the claim. 
 
 From the authorities now examined it may be deduced as 
 
80 
 
 the law of England ;—1. That a ferry is an incorporeal here¬ 
 ditament and a local franchise, having respect only to the land¬ 
 ing places :—2. That a person without a license, interfering with 
 an ancient ferry, is considered a wrong-doer, and liable in a 
 suit for damages :—3. That upon an ad quod damnum a new 
 ferry may be licensed. Beyond this, that law is silent. 
 
 In this commonwealth no provision has ever been made for 
 issuing a writ of ad quod damnum. The power of establishing, 
 altering and discontinuing roads and ferries, has been from time 
 to time delegated to subordinate tribunals. The subject appears 
 to have been entrusted to their discretion. In no instance has 
 a license granted by them been deemed exclusive. 
 
 When navigable waters were to be permanently obstructed, 
 resort has been had to the supreme power of the state, the 
 legislature. The control of this portion of the eminent domain 
 was reserved by the legislature; and the history of our legisla¬ 
 tive proceedings may be appealed to with safety for the support 
 of this position. The petition to the legislature stating the pub¬ 
 lic wants, is followed by an order of notice; sometimes a view¬ 
 ing committee is appointed; then a committee of both houses 
 to give the parties a hearing; which terminates in a report as 
 the basis for the conduct of the legislature. The proceedings 
 from time to time in relation to the bridge of the plaintiffs, 
 and the subsequent ones connected with Boston, are according 
 to the course pursued both before and since the revolution. 
 
 From the adoption of the state constitution in I7S0 to 1811, 
 among the various statutes passed authorizing bridges to be built 
 over navigable waters, there are but four instances in which the 
 subject of compensation is brought into notice; viz. Essex 
 bridge in 1787, Essex Merrimack bridge in 1792, Haverhill 
 bridge in 1793, and Andover bridge in 1794. During this pe¬ 
 riod there were fourteen instances where bridges were author¬ 
 ized to be built at or near ferries, as mentioned in the acts, and 
 no compensation was provided ; besides a multitude of cases 
 where probably ferries were in use, the existence of which is 
 not noticed. 
 
 That a grant of a ferry does not ex vi termini import any ex¬ 
 clusive right, except at the particular landing places, is not only 
 
81 
 
 shown by the uniform course of legislation upon this subject, 
 and in relation to this particular ferry itself, but it follows from 
 the nature of our country and the circumstances under which 
 it was settled. If the doctrine contended for by the plain¬ 
 tiffs had been adopted, the first grant of a ferry on the Merri¬ 
 mack at Newbury, or on the Connecticut at Springfield, would 
 have carried the right to the river in its whole extent; for no 
 other ferry, at that early period, could have been set up, which 
 would not have drawn away the custom from the one already es¬ 
 tablished. This doctrine of exclusive privilege was not then 
 entertained. It has since been engrafted by cupidity upon 
 possession. The first settlers came with a fixed hostility to ex¬ 
 clusive privileges of all kinds, and as early as 1641 they de¬ 
 clared, that “ there shall be no monopolies granted or allowed 
 amongst us, but of such new inventions that are profitable to the 
 country, and that for a short time.” Anc. Charters, &c. 170. 
 
 4. Whatever may have been the rights of the college in the 
 ferry, the college did not grant or convey the same to the plain¬ 
 tiffs for the term of forty years, mentioned in the act of 1784. 
 
 No grant is produced and no lost grant is supposed. There 
 is no chasm in the college records. No vote is exhibited au¬ 
 thorizing the transfer or showing that any one had been made. 
 The proceedings of the legislature furnish no evidence that such 
 grant was made, or that the rights of the college were surren¬ 
 dered by the college, and then granted by the government to 
 the plaintiffs. If the franchise was surrendered, it was extin¬ 
 guished ; and if it exists, it must have been re-created by ex¬ 
 press enactment. Finch’s Law, 164, c. 14. There is no room 
 to presume a grant from the college ; the operative instrument 
 of transfer must be the act of incorporation. The plaintiffs al¬ 
 lege that the payment and receipt of the annuity, and ceasing to 
 keep the ferry, furnish ground for presuming, not a grant, but 
 the agreement of the college to the act of the legislature. Their 
 silence or acquiescence proves nothing. If A suffers B to con¬ 
 vey his property to C without making known his title, it amounts 
 at most only to an estoppel. But here C knew of A’s title. 
 Certainly no grant of A’s rights is to be inferred in such a case. 
 Besides, no consideration is given to the college for the sup- 
 
 11 
 
82 
 
 posed grant. They were already in the receipt of the 200/. a 
 year. The conclusion to be drawn from the acquiescence of 
 the college, and from the omission of the petitioners for the 
 bridge to treat with them for their supposed rights, is, that nei¬ 
 ther party believed any such rights to exist. The right to dis¬ 
 pose of and manage these navigable waters was considered to 
 be in the commonwealth alone, and hence, instead of providing 
 in the act of 1784, that the college, at the end of forty years, 
 should be put in possession of the bridge, which is stated to be a 
 substitute for the ferry, it is to revert to the commonwealth. 
 
 The ferry was an hereditament, and lay in grant, and not in 
 livery ; and by our St. 1783, c. 37, § 4, could pass only by 
 deed duly acknowledged and recorded. 
 
 5. But if the plaintiffs had the right of the college for forty 
 years, they ceased to have it on the termination of that period. 
 
 The college received no consideration for the extension of 
 the term. The annuity was not increased, notwithstanding the 
 increase of population and travel. The assent of the college 
 was not asked nor given. 
 
 6. Whatever right the college might have to a ferry, they 
 could convey no right to the plaintiffs as a corporation to build 
 a bridge. Payne v. Partridge, 1 Show. 243, 257; 8. C. 
 1 Salk. 12 ; S. C. 3 Mod. 293. 
 
 7. No such exclusive right as is claimed by the plaintiffs w r as 
 conveyed by the legislature, by the act of incorporation for the 
 term of forty years. 
 
 That the act of incorporation is a contract, we do not deny ; 
 and if the recent act violates that contract, and so is repugnant 
 to the constitution of the United States, we concede that it is in 
 the power of the Court to declare the recent act to be void. 
 But so much respect is due to any legislative act solemnly 
 passed, that the Court will presume it to be constitutional, until 
 the contrary clearly appears. Hilton v. United States, 3 Dal¬ 
 las, 175 ; Colder v. Bull, ibid. 395, 399; Cooper v. Telfair, 
 4 Dallas, 18; Fletcher v. Peck, 6 Cranch, 12S ; Adams v. 
 Hoive, 14 Mass. R. 345. 
 
 We contend that the contract entered into in 1785, was, that 
 the proprietors of the bridge should be a corporation for the 
 
83 
 
 term of forty years, and that they should have authority to take 
 toll, for their sole benefit, of all persons who should pass over the 
 bridge during that period. This is the whole of the exclusive 
 right. 
 
 An exclusive grant to the extent claimed, would have been a 
 violation of the constitution of the commonwealth. Exclusive 
 privileges can be granted only for “ the consideration of servi¬ 
 ces rendered to the public.” Bill of Rights, art. 6. In the 
 choice of modes to prevent any abuse of the power of reward¬ 
 ing such services, the only safe and practicable one which oc¬ 
 curred to the makers of the constitution, was, to require that 
 the services should be rendered before they should be reward¬ 
 ed ; in which case the nature and value of them could be as¬ 
 certained. 
 
 A grant made by the public is not to be extended by impli¬ 
 cation. A grant made by the king at the suit of the grantee, 
 shall be taken most beneficially for the king and against the 
 party. It shall not enure to any other intent than that which 
 is precisely expressed. 2 Bl. Com. 347 ; Royal Fishery of 
 the JBanne, Davies, 157; Finch’s Law, 100; Legat's Case, 
 10 Co. 112; The Elsebe, 5 Rob. Adm. Rep. 162; The King 
 v. Capper, 5 Price, 217 ; Portland Rank v. Apthorp, 12 Mass. 
 R.252. 
 
 8. Still more strongly, if possible, is all idea of such an ex¬ 
 clusive right negatived by the language of the extension of the 
 charter in 1792. The plaintiffs at that time set up a claim 
 to this exclusive right by purchase from the college. The com¬ 
 mittee of the legislature, in their report on the plaintiffs’ re¬ 
 monstrance, deny the existence of the exclusive right claimed 
 to build over the waters of Charles river, and the act itself of 
 1791 is silent as to any such right. 
 
 Fletcher on the same side. This case, however important it 
 may be in a pecuniary point of view, to the parties themselves, 
 is of much greater importance in reference to a free course of 
 legislation. The general welfare is closely connected with it. 
 The present age is remarkable for the progress of improve¬ 
 ments ; which is the natural result of a liberal competition. 
 
84 
 
 The plaintiffs seek to annul a law opening another avenue 
 to the large and increasing metropolis of Massachusetts. This 
 law was not enacted through inadvertence. The object of it 
 had been several years under the consideration of the legisla¬ 
 ture, and the plaintiffs had again and again urged their ob¬ 
 jections ; which were deemed invalid. 
 
 The defendants have been charged with a disposition to in¬ 
 vade private property. They maintain as strongly as any one, 
 that property is to be protected, and that contracts should be 
 held inviolable. They have no greater interest in the present 
 case than the rest of the community. Nor have they acted 
 without a due regard to the rights of the phintiffs. It is 
 not to be concealed, that this claim on the part of the plain¬ 
 tiffs is not new. In the cases of the West Boston bridge and 
 the Canal bridge, this same question of exclusive right under 
 the college and under the plaintiffs’ charter, was presented to 
 the consideration of the legislature, and was disallowed. Some 
 of the most distinguished lawyers in the commonwealth were 
 active in obtaining the grants for those bridges, and the plain¬ 
 tiffs have acquiesced for more than thirty years in the supposed 
 violation of their rights. 
 
 The claim now made will not bear examination. It cannot 
 be stated, in any form, so as not to be bad on a demurrer at 
 common law. 
 
 The plaintiffs allege that they were authorized to build a 
 bridge at or near the place where an ancient ferry was kept; 
 but the expression in their charter is in the place. They allege 
 that their bridge was designed to accommodate a certain line of 
 travel leading to and from the southerly part of Charlestown 
 and the northerly part of Boston. If this means any thing, it 
 means a line of travel from Charlestown square to the north 
 end of Boston ; and with that the defendants do not interfere. 
 But in truth, Charles river bridge was intended to accommodate 
 the whole country. Travel came from the east, north and 
 west, from other states as well as from different parts of our 
 own ; and the idea of a line of travel taking in all this is pre¬ 
 posterous. West Boston bridge was upon this line of travel, if 
 it can be so called, as much as Warren bridge. 
 
85 
 
 They do not allege that by their act of incorporation they 
 had an exclusive right over these waters. But they set out that 
 there was an ancient ferry owned by the college, and that when 
 their act was passed, the college consented to accept of them 
 200 1. per annum, in satisfaction and as a compensation for the 
 exclusive right to the whole ferry, and thus they became suc¬ 
 cessors and assignees of the college for forty years, and so 
 were entitled to erect a bridge : a palpable non sequitur. 
 
 The original charter to the proprietors of Charles river bridge 
 has expired, and if the act of 1791 has not been accepted and 
 the conditions been performed by them, they have no longer 
 any right. 
 
 We allege that they had an agency in procuring the extension 
 of their charter; but this they deny. It is certain they did 
 not apply fora charter to the proprietors of West Boston bridge, 
 but remonstrated, and represented that the profits received had 
 not amounted to eleven per cent, upon the original cost. If 
 their bridge was so unpromising and they did not interfere in 
 the extending of their charter, there can be no presumption of 
 their accepting the extension. As it was a grant imposing lia¬ 
 bilities and increasing burdens, there ought to be proof of an 
 express acceptance. They produce no vote to that effect of 
 an earlier date than 1802. They kept a bridge indeed, but it 
 was by virtue of the original charter ; and nothing was done by 
 them by which they would be bound, previous to 1802. A 
 vote of acceptance in that year would have been too late, but 
 they produce no such vote. Merely entering the act on their 
 records neither implies acceptance nor non-acceptance. It 
 would not have estopped them from denying any acceptance ; 
 and so they understood it, since in 1826 they passed a vote ex¬ 
 pressly accepting the extension. This was too late. The legis¬ 
 lature ought to have been informed of the acceptance, as it 
 might affect their proceedings in respect to other bridges. We 
 had applied for a new bridge in 1823. [Parker C. J. Is it 
 not an answer to this, that in the act incorporating the proprie¬ 
 tors of the Warren bridge (§ 8) the legislature recognise the 
 charter of the plaintiffs as being in force ?] The question of 
 acceptance was not before the legislature, and we think that 
 that recognition is not an estoppel. 
 
86 
 
 The relinquishment of the double toll was a condition, a 
 compliance with which was indispensable to the extension of 
 the plaintiffs’ charter. The proof is, that they did not give it 
 up immediately after the passage of the act of 1791. The re¬ 
 linquishment ought to be by some express corporate act.; not 
 merely by ceasing to take the toll. For suppose that West 
 Boston bridge had not been built within the three years allowed ; 
 the complainants would then have resumed taking the double 
 toll, and they could not have been prevented. And most of 
 the witnesses say that the ceasing to take the double toll was 
 after the West Boston bridge was built. 
 
 The plaintiffs allege that the recent act is contrary to the 
 constitution of this state, because it takes away their property 
 without providing for compensation. We admit that the legis¬ 
 lature cannot take private property for the use of the public, 
 without making compensation. Neither do we deny that a 
 ferry-right is property. We contend however, that it is real 
 property. It is a local franchise ; of which the owner may be 
 disseised. And for the recovery of it, he might have an assise 
 of novel disseisin, (St. fVestm. 2, c. 25,) a prcecipe quod reddat, 
 and an habere facias. These remedies are applicable only to 
 real property. And if we have taken their real estate, they 
 have a remedy given expressly in our act of incorporation. 
 We have no authority to take personal property, and if we have 
 done so, we are liable to an action. 
 
 We contend that we have not taken any real property belong¬ 
 ing to the plaintiffs. The nature of their estate is apparent. 
 They have their bridge. Higher up the river the public have 
 the right. The complaint is founded on the circumstance, that 
 the public have used their property above the bridge, whereby 
 the plaintiffs have sustained damage. If the public have re¬ 
 strained themselves from so using their own property, doubtless 
 we have no right to maintain our bridge ; but still we say that 
 we have taken no property from the plaintiffs. The case is pre¬ 
 cisely like that of Callender v. Marsh , 1 Pick. 4IS. Though 
 the plaintiffs may suffer, the loss is occasioned by a legiti¬ 
 mate exercise of the power of the public over their own pro¬ 
 perty, and is damnum absque injuria. It is a collision of inter- 
 
87 
 
 est, not of right; and the interest of the few must yield to that 
 of the many. The proprietors of Charles river bridge ought 
 to be the last persons to complain of hardship. They say they 
 built their bridge for the public benefit, and all they asked was 
 to be reimbursed. Their charter gave them a toll for that 
 purpose, and their receipts have been equal to many times the 
 amount of their disbursements. 
 
 The next question is, whether the act of 1826 is in violation 
 of the constitution of the United States, as being an act im¬ 
 pairing the obligation of a contract. 
 
 The act is within the general scope of legislative authority, 
 the object of it being to make a highway over an arm of the sea. 
 It is not a wanton exercise of power, but was intended to meet 
 the demands of the public. The question of convenience and 
 necessity is to be determined by the legislature, and is not to be 
 rejudged elsewhere. The act itself need not purport to be found¬ 
 ed on public convenience and necessity ; that is implied in the 
 mere enactment. 
 
 But the plaintiffs say, that although public convenience and 
 necessity might require another bridge, still our act was not re¬ 
 quired ; that they offered to make another bridge, or to sell their 
 franchise, or to reduce their tolls. If they could under their 
 charter build another bridge, or make a spur-bridge, why did 
 they not do so ? Their conduct shows that they had little faith 
 in the ground they assume, of a right to the whole of the river 
 between Boston and Charlestown. They claim now, that no 
 rival bridge shall be erected between Boston and Charles¬ 
 town. Formerly they claimed a right over the waters as high 
 up as West Boston bridge. If they go. upon principle, they must 
 exclude all injurious competition, and they were right in oppos¬ 
 ing the construction of that bridge. But they say, that whether 
 a competition shall be lawful or not, depends on the degree. 
 There can be no degree in principle. They must either say 
 that the legislature can authorize no competition at all, or that 
 they may allow as much competition as they please. A very 
 large amount of toll w 7 as drawn off by West Boston bridge and 
 Canal bridge, in which the plaintiffs acquiesced ; and it is absurd 
 to say that the amount makes any difference. The question is 
 entirely within the discretion of the legislature. 
 
88 
 
 The legislature are only bound not to re-assert any right which 
 they have before granted ; and the question is, whether the same 
 right has been granted to Warren bridge that had been previously 
 granted to Charles river bridge. The plaintiffs say that the 
 whole right of transportation between Boston and Charlestown 
 had been granted to the college, and so the grant of a part of 
 it to the Warren bridge is an infringement on the first grant. 
 
 It is necessary then to consider what was the right as between 
 the government and the college. This is matter of record ; all 
 prescriptive right is excluded. Until the year 1650 the col¬ 
 lege had not interfered in the management of the ferry, but had 
 only received the income. It was then provided by the govern¬ 
 ment, that when the lease should expire, the college might dispose 
 of the ferry by lease or otherwise, but on condition that it should 
 be under the regulation and control of the government. In 
 
 1654 there was a grant of 100?. and, as we say, of the revenue 
 of the ferry, to continue during the pleasure of the country. In 
 
 1655 the government lent the president of the college for his 
 personal expenses, the sum of 30?., to be repaid out of the 
 income of the ferry. In 1694 and 1710, acts were passed, 
 regulating the ferry. In 1780 the college made repairs on 
 certain sheds connected with the ferry, and directed the ex¬ 
 penses to be laid before the legislature. And lastly, in 1781, 
 the entire control of the ferry was taken into the hands of gov¬ 
 ernment. Our construction of these and the other proceedings 
 relating to the ferry is, that no grant of the ferry itself was 
 made to the college, but that they were permitted to receive 
 the income, as a gratuity. It was suggested that there was no 
 distinction between a grant of the income and of the thing it¬ 
 self ; but it may be said as well, that the grant of the annuity 
 makes the college the owner or a part owner of the bridge. The 
 words of the grant of 1640 might carry the ferry, but the acts 
 of the government and of the college, before and after the grant, 
 give to it a different construction. The college was not then a 
 corporation; and no burden was imposed on them of managing 
 and looking after the ferry ; but to let them receive the income, 
 was consistent with the intention of the government and the situ¬ 
 ation of the college. The only object was, to give the college 
 
89 
 
 some revenue. The government was the patron; they were 
 the beneficiaries. On the application of the college stating that 
 they could manage the ferry to more advantage than the gov¬ 
 ernment, they were in 1G50 allowed to dispose of it on certain 
 conditions. The college could not have been indicted for 
 not keeping boats and maintaining the ferry. They might have 
 declined doing so when they pleased, and the government might 
 have resumed the ferry at pleasure. The course of interfer¬ 
 ence on the part of the government rebuts the idea of a grant; 
 and the interference was commensurate with the public exi¬ 
 gencies, until the moment when the ferry was superseded 
 by the bridge. It is idle to talk of the consent of the college to 
 the act of 1784, which takes away the whole franchise. It is 
 a mere fiction. They were not a party to the act, and had no 
 voice in the matter. A provision is indeed made for their 
 benefit, but they made no application for it. In 1800, it is true, 
 they recite their consent, but it was with a view of gaining some¬ 
 thing. Whatever they had received, had been bestowed as a 
 bounty. 
 
 Whenever the ferry was spoken of, it was understood as per¬ 
 fectly defined ; it was from one landing-place to the other. In 
 Savil, it is said, the ferry is in respect of the landing-places. The 
 plaintiffs contend, that the exclusive right of transportation be¬ 
 tween Boston and Charlestown, to the end of time, and without 
 any reference to increase of population, was given to the college. 
 Such a position is not creditable to the intelligence of our an¬ 
 cestors. They came to this country with a hatred of monopo¬ 
 lies, and they ordered, not that no monopoly should be granted, 
 but that none should be allowed. They foresaw the augmentation 
 of population and the increasing wants of the country. There 
 were several ferries already from Boston, and if in this case 
 they threw away public rights in the manner supposed, it is a sol-' 
 itary instance. They knew the difference between an indefea¬ 
 sible grant and one revocable at pleasure, and between a grant 
 which was exclusive and one which was otherwise. (See the or¬ 
 der in 1648 respecting the Neponset ferry.) 
 
 And this exclusive, interminable right of the college, is sold 
 for an annuity of only 200 1. per annum ! The plaintiffs set 
 12 
 
90 
 
 out that they are the assignees of the college, and owners of 
 this exclusive right. One would naturally expect to see some 
 parchments and formality in a negotiation of such magnitude ; 
 but the whole turns out to be a fiction. No deed or vote of the 
 college is pretended ; there has been no loss of any instrument; 
 but still the plaintiffs say they are grantees, because the colldge 
 ceased to keep up the ferry and received the annuity. If the 
 college did own this ferry exclusively ?nd absolutely, the de¬ 
 struction of it was a high-handed interference on the part of the 
 government. But it is said a compensation was made. A sum 
 fixed by the legislature was given, but that was not a consti¬ 
 tutional compensation. Vanhorne. v. Dorrance, 2 Dallas, 315. 
 The college had a right to a trial by jury. Their acquiescence 
 does not change the nature of the act. The plaintiffs say, that 
 by reason of the payment of the annuity, they became purchas¬ 
 ers of the ferry, whether the college consented or not, and so 
 they were equitable assignees. [ Webster . We say the evidence 
 shows a consent.] The college ceased to keep up a ferry and 
 received the annuity, but these acts do not show that the col¬ 
 lege were a party to the act of 1784. The proceedings of the 
 legislature were on the ground, that the college had no control 
 of the ferry. The college would not wish to quarrel with the 
 government, which had been their benefactor, but it is extraor¬ 
 dinary that they should have been willing to yield all their 
 rights to the plaintiffs. The plaintiffs did not pay the annuity ; 
 it came out of the public, out of the tolls. The government 
 did not intend that the annuity should be considered as a com¬ 
 pensation to the college, and according to the authorities on 
 the other side, it could not be so ; it was a gratuity from the 
 government. There was no increase of the amount which the 
 college had been accustomed to receive, and yet the bridge, 
 at the end of forty years, was to revert, not to the college, but 
 to the government, saving to the college a reasonable compen¬ 
 sation for the income of the ferry. This repeis any title in the 
 college, independent of the pleasure of the government. 
 
 The plaintiffs say that the bridge is a substitute for the ferry ; 
 that they are the successors and grantees of the college, and 
 that they stand in the same situation, as owners of the ferry. If 
 
91 
 
 so, they are subject to the same regulations ; which they will 
 hardly admit. But they say the legislature are restricted by 
 their grant. If so, then the grant of the ferry is one thing and 
 of the bridge another ; which disproves their position. The 
 legislature regulated the ferry, but if it should undertake to reg¬ 
 ulate the toll-men, the plaintiffs would deny its authority : and 
 justly ; but they would rely, not on the assignment of the ferry, 
 but on their own charter. 
 
 The case is stripped of the ferry-rights, and the question 
 must be, whether, by the acts of 1784 and 1791, a contract was 
 made restraining the legislature from granting our bridge. Is 
 the act of 17S4 impaired by that of 1S27, or is the thing grant¬ 
 ed re-asserted ? 
 
 We might rely on the plaintiffs’ own view of the case. They 
 have not relied on an exclusive right as derived from their 
 charter, but they try to connect their charter with the college 
 right. They cite a case from Palmer, to show that a bridge 
 may be substituted for a ferry ; but in Pain v. Patrick, 3 Mod. 
 294, it is held, that the owner of a ferry cannot convey a right 
 to build a bridge. 
 
 Their charter allows them to erect a bridge at a particular 
 place, where the ferry then was. The landing-places were well 
 known. If their grant were construed most against the grantors, 
 it would not give a right to take toll at any other place. They 
 will not contend that they can erect a bridge off of the precise 
 spot where the old ferry was kept. The fallacy is, they do not 
 consider themselves as the grantees of a bridge with the right 
 to take toll of persons going over it, but they say they have a 
 right to take toll of all persons passing between Charlestown 
 square and Boston ; and they liken their rights to those of a 
 mill, to which all persons belonging to the manor must carry 
 their grain ; they say they have a right to make people pass 
 over their bridge, and not merely to take toll of those who do 
 pass. That their charter will not bear this construction, is 
 manifest from the authorities cited. 2 Bl. Com. 347; The El- 
 sebe, 5 Rob. Adm. Rep. 162. There is not a word in their 
 grant, showing it to be exclusive. Every man takes such a 
 grant subject to the right of the legislature to make a similar one 
 
92 
 
 whenever public convenience and necessity shall require it. 
 But it is asked, would any person take such a charter for a bridge, 
 if the legislature may immediately erect another bridge by the side 
 of the first ? On the other hand, we may ask, whether the legisla¬ 
 ture would make such a grant as the plaintiffs contend for. 
 But we may say further, that such a charter would be accepted ; 
 for the citizens have confidence in the wisdom and integrity of 
 the legislature ; they are willing to believe that the legislature 
 will act as the public good shall demand, and will not injure an 
 individual by a wanton exercise of power. There was no ne¬ 
 cessity for making so extensive a grant as the plaintiffs claim j 
 the Cabots were offering to build a bridge from Boston to Lech- 
 mere Point on much better terms ; and the reason why their 
 petition was not granted, was the sympathy felt for the inhabi¬ 
 tants of Charlestown on account of their sufferings during the war. 
 
 The cases cited on the other side may be arranged in three 
 classes. First, where the grant of the legislature is repealed or 
 altered without the consent of the grantee, as in Fletcher v. 
 Peck and Dartmouth College v. Woodward. Those are in no 
 degree parallel to the present case. The plaintiffs say, that tak¬ 
 ing away their toll is equivalent to taking away their grant. 
 But our act does not prevent their receiving toll. Making 
 a similar -grant is not granting the same thing. Another class 
 relates to exclusive grants ; and to such the remarks of Chan¬ 
 cellor Kent apply, in Gibbons v. Ogden. A third class is where 
 the public have made a grant of a highway, and an individual, 
 without any authority from the government, sets up another 
 and diverts the custom, leaving the grantee obliged to maintain 
 his highway, while he is deprived of the benefit allowed him by 
 the government. 
 
 Reliance has been placed on a dictum in the Year Book of 
 22 H. 6, that a ferry set up near an old one is a nuisance. 
 This was said arguendo , and though it has been repeated in 
 books since, it is not sustained by the authorities, in the sense 
 in which the plaintiffs would have it understood. It referred to 
 an interference by an individual acting without authority from 
 the government. Willes, 512 ; Yard v. Ford, 2 Saund. 174 ; 
 
 1 Nott and M‘Cord, 395 j 3 Murphy’s N. Car. Rep. 57. The 
 
93 
 
 case of Rex v. Butler, 3 Lev. 222, is conclusive on this point. 
 The whole reasoning there proceeds on the ground, that the 
 writ of ad quod damnum was surreptitiously obtained, and so 
 the new market was a nuisance. It has been suggested, that an 
 ad quod damnum is a matter of form ; that it is executed with¬ 
 out notice. This is a mistake. The English newspapers of 
 the present day contain advertisements in which the sheriff 
 gives notice that he is about to execute such a writ. Upon a 
 license granted alter a writ of ad quod damnum duly executed, 
 a man sets up a market &c. with safety. Rex v. Montague , 
 4 B. & Cr. 598. 
 
 We have no writ of ad quod damnum in our practice ; but a 
 hearing before the legislature is equivalent. The report of the 
 committee of the legislature in 1792, negatived any exclusive 
 right in the plaintiffs, but as a matter of bounty they recommend¬ 
 ed an extension of the time allowed them for receiving toll for 
 passing their bridge, and whatever may have been the original 
 grant, it should seem that this report was intended to put an end 
 to the claim of an exclusive right, and the plaintiffs must take 
 the extension in the terms in which it was given. There has 
 been a contemporary and repeated construction of the plaintiffs’ 
 right, and in which they have acquiesced. Their claim was 
 made before the legislature when the West Boston and the Ca¬ 
 nal bridges were granted, each of which interfered greatly with 
 their profits. The spur from the Canal bridge, it is said, leads 
 from Charlestown to Cambridge ; but it likewise leads from 
 Charlestown to Boston. An acquiescence in wrong may not 
 give a right; but we allude to the fact as showing the general 
 understanding of the community. 
 
 There is nothing in the English decisions that is inconsistent 
 with the practice of our legislature; and if there was, they 
 could not control the practice and principles which have been 
 held here from the settlement of the country. The usage here 
 has always been, to make grants like the one in question, with¬ 
 out giving any exclusive right. The case of Chadwick’s ferry 
 settles no point of law. The legislature made provision for his 
 indemnity, but otherwise it was not a question of right. In 
 some instances the legislature give a privilege of taking shares 
 
 
94 
 
 in the new enterprise, in others a fixed sum is allowed ; not as 
 a matter of right, but of discretion. If the doctrine on the oth¬ 
 er side is correct, the grants of most of the bridges about Boston 
 were outrages upon private property ; in particular, the free 
 bridge to South Boston. The turnpike from West Boston 
 bridge to Watertown, was of the same character. The declar¬ 
 ed design of it was to draw travel from the turnpike leading 
 from the Mill-Dam to Watertown. Why has there been no 
 prosecution before, unless from the general understanding that 
 the legislature had a right to make these grants ? 
 
 The plaintiffs argue, that a decision in our favour will put 
 a stop to enterprise. On the contrary, that is the very genius 
 of monopoly. History shows, that monopolies in England be¬ 
 came intolerable, and they were swept away by the statute of 
 James. If the system had been practised on here, we should 
 now have had the old ferry, instead of the plaintiffs’ bridge. A 
 new invention always injures a previous one; but improve¬ 
 ments have gone steadily on in this country, and we trust will 
 continue to make advances under our system of liberal compe¬ 
 tition. 
 
 Webster in reply. The question before the Court is now' to be 
 discussed and settled upon strict principle applicable to private 
 rights. The case is now where reason is to govern, and not de¬ 
 clamation. Legislatures do not act under the same responsibil¬ 
 ity as judges. They may determine by simple ayes and noes ; 
 but a judge must give reasons for his decision. It may not be 
 improper to advert to general considerations of expediency, but 
 they cannot have very great influence. The defendants talk of 
 a free course of legislation, of free competition, as the source of 
 public improvements. They would not, I trust, compete with 
 us for our franchise. But how are public improvements pro¬ 
 moted among us, except by private funds advanced upon a 
 confidence reposed in the most delicate and strict observance of 
 public faith ? Nothing is done here by the government itself, 
 but every thing by individuals, under the sanction of the govern¬ 
 ment ; and the defendants would bring their liberal doctrines in¬ 
 to conflict with rights thus established. I rejoice in an oppor¬ 
 tunity to resist the attempt to force these popular notions upon 
 courts of justice. 
 
95 
 
 The plaintiffs have a bridge, at which they receive toll; the 
 defendants place another bridge by the side of it and take two 
 thirds of the toll; and the question is, whether this is an invasion 
 of private rights. If the new bridge is not protected by the act 
 of 1527, we say it is a nuisance at common law ; if it is so pro¬ 
 tected, then we say that that act is contrary to the constitutions 
 of this state and of the United States. 
 
 Before considering these great questions, it may be well to 
 dispose of some subordinate collateral matters. 
 
 The plaintiffs must be an existing corporation in order to main¬ 
 tain this suit. The defendants say, that the original charter of 
 the plaintiffs has expired, and that there has been no accep¬ 
 tance of the extension allowed by the act of 1791. The objec¬ 
 tion admits of several answers. First, if the plaintiffs are not a 
 corporation, it should have been pleaded in abatement. Sec¬ 
 ondly, the defendants’ own charter recognises the plaintiffs as a 
 corporation. And thirdly, the plaintiffs have accepted the ex¬ 
 tension of their charter. If an act of incorporation is granted 
 to individuals, organizing themselves under it is an acceptance 
 of it; and if an additional act is passed, any thing done in con¬ 
 formity to it, which they could not have done without it, is an ac¬ 
 ceptance of the additional act. The plaintiffs have continued to 
 act as a corporation; which is conclusive evidence of such ac¬ 
 ceptance. But it is said we ought to have accepted sooner. 
 What then ? It may be matter to be tried on a quo ivarranto, if 
 the commonwealth see fit to institute such process ; but it does 
 not concern the defendants. Before the expiration of the first 
 act, the second was expressly accepted by a vote ; and why was 
 not this in season ? Further, the plaintiffs acted in a manner irre¬ 
 concilable with the non-acceptance of the act, by discontinuing 
 to take the double toll. It is objected however, that this was 
 not until the West Boston bridge had been built. Witnesses in 
 speaking of a transaction which took place more than thirty years 
 ago, would naturally refer to something visible to fix the time ; but 
 we believe that the plaintiffs discontinued the double toll imme¬ 
 diately after the passing of the act, though they did not make the 
 entry of the act on their books till 1802. Besides, the provision 
 on this subject was not a condition precedent. Grants which 
 
96 
 
 are beneficial to a corporation, are presumed to be accepted. 
 United States Bank v. JJandridge , 12 Wheat. 70. The act 
 in question, so far as the plaintiffs’ assent to it could be of any 
 avail, was beneficial to them. If they had had the power, they 
 would have rejected the whole act; but that they could not do, 
 and the extension of their charter for thirty years was a benefit. 
 
 The defendants say, that the ferry was not a ferry by prescrip¬ 
 tion. We have merely called it an ancient ferry. But whether 
 it was by prescription or by grant, the law in regard to it is the 
 same. 
 
 It is objected that the college have never assented to the act 
 of 1791. They have received the annuity provided for by the 
 act, and this is an assent. But their assent was not necessary. 
 Their whole right to the ferry had been relinquished in 1785, 
 and the question in 1792 was between the government and the 
 plaintiffs only. 
 
 Other cases of questionable legislation have been enumerated 
 on the part of the defendants. It is a very usual course for a 
 man in fault, to resort to similar instances for his justification. 
 There is a natural alliance between bad principle and bad 
 practice. But the Court are not told of the ninety-nine cases 
 in the hundred, in which the legislature have been sedulously 
 attentive to the preservation of private rights. 
 
 First, it is said that if our construction of our charter is cor¬ 
 rect, the grant of West Boston bridge was a flagrant violation of 
 our rights. Suppose it was so; we complain now of a more 
 flagrant violation. Is a former remote encroachment to justify 
 an immediate and direct encroachment? Forbearance in a 
 questionable case does not affect the right. If the legislature 
 did wrong in granting the West Boston bridge, they at the same 
 time conferred a benefit in the extension of our charter, which 
 furnished a sufficient reason for our acquiescence. 
 
 The counsel say, that in 1792, a committee of the legisla¬ 
 ture made a report, which was accepted, giving the negative to 
 our claim to an exclusive right. The report is of no authority,— 
 but what does it amount to ? That the act of 1784 “ is not an 
 exclusive grant of the right to build over the waters of Charles 
 river.” If the plaintiffs misconceived their rights, it does not 
 
97 
 
 follow that they have no rights. We do not now set up the claim 
 which was made in 1792 ; our present claim and the report may 
 well stand together. 
 
 The erection of Canal bridge too, it is said, was, according to 
 our principles, a violation of our rights, and yet we did not re¬ 
 sist. Possibly the proprietors of Charles river bridge thought 
 the interference was rather with West Boston bridge ; and 
 the division between that bridge and Canal bridge, of the burden 
 of the college annuity, favours the idea. It is however sufficient 
 to remark, that if in a doubtful case the plaintiffs did not think it 
 would be advantageous for them to contend, it does not con¬ 
 clude them in the present case. 
 
 In regard to Malden bridge, the Penny ferry seems to have 
 belonged to the town of Charlestown, and the inhabitants may 
 have considered that their interest would be advanced by hav¬ 
 ing it superseded by the bridge. And when this bridge was 
 afterward injured by the grant of Chelsea bridge, it was provid¬ 
 ed in the act, upon the agreement of the parties, that a portion 
 of the profits of Chelsea bridge should be paid to the proprie¬ 
 tors of Malden bridge. But it is objected that no compensa¬ 
 tion was made to the owner of Winnesimet ferry for the dam¬ 
 age occasioned by Chelsea bridge. It may be remarked in an¬ 
 swer, that the bridge was between Chelsea and Charlestown, 
 and the ferry was over an arm of the sea from Chelsea to a 
 third town at a considerable distance from the bridge. 
 
 In the case of the free bridge to South Boston there was no 
 memorial in behalf of the proprietors of the old South Boston 
 bridge, and a majority in interest were in favour of the erection 
 of the new bridge. 
 
 The two turnpike roads from Watertown to the Mill-dam and 
 West Boston bridge, were both granted in the same year, 
 and it was a race between the parties, which should get a road 
 first. 
 
 But none of these instances furnish authority for a court of 
 law. 
 
 Much has been said about odious monopolies. Is a bridge, 
 a ferry, a fair, or a market, a monopoly ? The statute of James 
 has not swept them away. A monopoly is a grant of a benefit 
 
 13 
 
98 
 
 without any burden. Joiner says, that a ferry or a bridge is not 
 a monopoly, because there is a duty to be performed by the 
 proprietor. Doubtless our predecessors, the Indians, had the 
 perfect freedom of competition which the defendants now want 
 to introduce; but they had no bridges, no ferries. All the 
 public improvements in the country have arisen from what the 
 defendants call monopoly ; from a grant by the public, of 
 security for private funds, for the benefit of using them. We 
 are asked if our ancestors would have granted to the college a 
 right over the whole river. Undoubtedly they would ; and if 
 they had foreseen the increase of population in the vicinity, 
 with their anxious desire to encourage learning, they would have 
 done it the more willingly. 
 
 We come now to the consideration of the real questions in 
 the case. 
 
 The first question is, whether the college had any ferry-right 
 in 1785 ;— whether by one or all of the previous grants, or by 
 usage only is immaterial. 
 
 A ferry having been previously established between Boston 
 and Charlestown, in 1640 the general court say, “the ferry be¬ 
 tween Boston and Charlestown is granted to the college.” 
 These words would be sufficient now to pass a ferry ; and at 
 that period, it was not usual to be more full and formal in 
 making grants. A ferry will pass by any words which show 
 such an intent. 1 Nott & M‘Cord, 3 ( J3. The defendants say 
 that this was a gratuity to the college. It may have been a 
 gratuity, but it was not revocable. A gift executed is beyond the 
 power of the legislature. This grant has been recognised by 
 the government in 1650, 1654, 1710, 171.2, 1781, and 1785. 
 The act of 17S1 ( St . 1780, c. 42,) regulating the ferry, im¬ 
 poses a heavy penalty on the college in case of negligence ; 
 and yet the defendants say the college were Subject to no bur¬ 
 den. The statute proceeds upon the ground, that the college 
 were liable to indictment, if the ferry were not properly kept. 
 The power of even regulating the tolls is recognised by that 
 statute to be in the college ; and yet it is said they had no fran¬ 
 chise. In St. 17S4, c. 53, § 5, “ a reasonable and annual com¬ 
 pensation for the annual income of the ferry ” is saved to the 
 
99 
 
 college, after the bridge shall become the properly of the com¬ 
 monwealth. Is this a gratuity, or is it an express acknowledge¬ 
 ment of a pre-existing right, and a compensation for the relin¬ 
 quishment of that right? All these acts are confirmations of 
 the grant, and yet it is argued, that they prove that the college 
 had no right at all. As well may it be contended, that the seve¬ 
 ral ratifications of magna charta abrogated it. 
 
 It has been objected, that the college could not take under 
 the grant, not being a corporation until 1650. That may have 
 been the reason then why a confirmation was made. 
 
 It is urged that the government have constantly interfered in 
 regard to the ferry. But they took none of the revenue, nor 
 ever resumed the franchise ; all their acts were merely regula¬ 
 tion. 
 
 The defendants distinguished between a grant of the fran¬ 
 chise and of the profits and revenues. But the distinction does 
 not aid them. All that the government could grant to an in¬ 
 dividual was the benefit. There is nothing beneficial in a ferry 
 except the tolls, the revenue ; and a grant of the revenue carries 
 with it an obligation to support the ferry. The government did 
 not sustain this ferry ; they built no boats, they merely regulated 
 them ; they derived no profit from the tolls. The actual man¬ 
 agement and revenue have always been with the college. If 
 using the whole franchise for a hundred and forty years, does 
 not give a title, it will be difficult to know who in this country 
 has a title. 
 
 Next, what is the extent of the ferry or franchise, up and 
 down the river ? It is sufficient for us to show that it is broad 
 enough to cover the place where the defendants have built their 
 bridge, and that so the bridge would have been a nuisance to 
 the ferry. 
 
 The grant was of a ferry between Boston and Charlestown ; 
 and this in legal contemplation takes the whole of the two ter¬ 
 mini. It covers the whole water between these two towns. 
 Suppose that no ferry or bridge had subsisted between these 
 towns, and an individual should to-day purchase of the govern¬ 
 ment “ the ferry between Boston and Charlestown ; ” how would 
 the grant be interpreted ? It must either include the whole wa- 
 
100 
 
 ter between Boston and Charlestown, or it has no limits. Would 
 the Court hold that the same prerogative could to-morrow grant 
 another ferry by the side of it ? The case is analogous to that 
 of a market. If a market is set up too near an ancient market 
 on the same day , it is by intendment of law a nuisance, but if 
 on another day, whether nuisance or not is a question of evi¬ 
 dence. So a ferry established between the same termini, is by 
 intendment of law a nuisance. 
 
 It is clear law, that it is a nuisance to set up a ferry so near 
 another as to draw away the toll. This doctrine, the defen¬ 
 dants say, is traced to a single dictum in the Year Books. That 
 would only prove that it was too plain to admit of dispute. But 
 it rests on other authority. The case in Hardres, as reversed by 
 Hale, acknowledges the law as above stated ; and it is recog¬ 
 nised by Brooke, Rolle, Cornyn, Blackstone, Kent, and the court 
 in South Carolina. 
 
 Where a thing is granted, all that is necessary to the enjoy¬ 
 ment of it goes with it. If an office is granted by name, all 
 the powers, duties and fees belonging to it pass. So of a ferry. 
 If an individual grants a ferry, all his rights accompany it; and 
 it is settled, that the right of a ferry, in local extent, is exclusive, 
 so far as to put down injurious competition. How does the 
 grant to the college in 1640 carry the beneficial part, the tolls? 
 They are not mentioned in the grant; but it has not been pre¬ 
 tended that the college took only the privilege to row and scull. 
 The law says, that the right to toll goes with the ferry by im¬ 
 plication ; but it says so no more than it does, that in like man¬ 
 ner passes the right to put down injurious competition. Both 
 are equally incidents to a ferry. The profits of this ferry were 
 originally 407.; why is it not contended that the government 
 might have taken all the excess afterwards, on the ground that 
 they did not intend to give more than that sum ? If they may 
 take back a part of what is granted by implication only, they 
 may the whole. 
 
 The defendants however contend, that it can be made out by 
 authority, that the ferry is limited to the landing-places, and a 
 case in Saville is referred to as overturning the doctrine of Kent 
 and others before named. The question there was, whether the 
 
101 
 
 owner of a ferry had any right to the water, except to navigate 
 it. We contend for no other right. “ A ferry is in respect to 
 the landing-places,” means only that there must be a place to 
 land. Com. Dig. Piscary B. 
 
 The grant in 1640 was not of a ferry de novo, but of a fran¬ 
 chise already in exercise. What were its rights at that time ? 
 History shows that it was the sole ferry between Boston and 
 Charlestown, and that it was in the hands of a lessee of the gov¬ 
 ernment at a rent of 40 1. a year. Could the government have 
 granted another ferry between these towns, to be used before 
 the lease to Converse had expired ? The lease gave him “ the 
 ferry between Boston and Charlestown, to have the sole trans¬ 
 porting of passengers and cattle from one side to the other.” 
 
 If this were doubtful, are we to forget that there has been a 
 long continued usage showing the extent of the grant ? No rival 
 ferry was attempted to be set up during the space of 145 years. 
 In Blankley v. Winstanley , 3 T. R. 279, a usage under a charter 
 is considered as the true exposition of the extent of the charter, and 
 it is there held to override a by-law. In 1785, the college, if they 
 had not assented to the erection of Charles river bridge, might 
 have sued the plaintiffs, and their charter would not have protect¬ 
 ed them. Chadwick v. Haverhill Bridge, 2 Dane’s Abr. 686. 
 In Tripp v. Frank, 4 T. R. 668, it is conceded, that if it had 
 been the duty of the plaintiffs to transport all passengers from 
 Kingston upon Hull, to Barrow, as well as to Barton, they would 
 have been entitled to all the tolls. So here, we are obliged to 
 transport all passengers between Boston and Charlestown, the 
 termini of our ferry, and our rights are commensurate with our 
 duties. 
 
 Next; if the college had, in 1785, the right of the ferry to 
 the extent above claimed, we are to consider what was the char¬ 
 acter of the transaction which took place in that year. It is en¬ 
 titled to receive a reasonable construction ; such as will protect 
 the parties to it, and carry their intent into effect. 
 
 The petitioners for a bridge could not erect one without the 
 consent of the college, as it faould have been a nuisance to the 
 ferry ; the college had no authority to build one to the obstruc¬ 
 tion of the navigable waters, as it would have been a usurpation 
 
102 
 
 against the government, and the government had not the power 
 to take away the ferry-tolls from the college. There were three 
 parties then, neither of which could alone erect the bridge. The 
 petitioners therefore were obliged to obtain from the government 
 a license to obstruct the navigable waters, and from the college, 
 a right to take the toll. Under these circumstances the act of 
 1784 was passed. The college were a party to the act; that 
 is, they assented to it. A subsequent ratification implies a pre¬ 
 vious assent. It was not necessary that they should be named 
 as a party in the act itself. They stop their ferry-boats, and ac¬ 
 cept of the annuity provided for them by way of compensation. 
 This was a ratification, and in connexion with the act, was a 
 conveyance of their right in the franchise, to the plaintiffs for 
 the term of forty years, and to the government ever afterwards. 
 The conveyance was founded on a consideration, in respect 
 both to the college and the commonwealth ; an annuity being 
 granted to the one, and a public benefit conferred on the oth¬ 
 er, at the plaintiffs’ expense. It has been said that the annuity 
 was payable out of the tolls, and so the consideration proceeded 
 from the public. On the contrary, the act makes it an abso¬ 
 lute charge on the plaintiffs, and it must be paid even if their 
 bridge should in any way be destroyed or rendered unproduc¬ 
 tive. We admit that there is no assignment in the forms of the 
 common law ; but the transaction is not to be looked at in a 
 technical view ; the intent of the parties is to be regarded. It 
 is a case of substitution of one person to another as owner of the 
 ferry, through an act of the legislature, which is binding on all 
 persons who assent to it. The transaction may be considered 
 as a purchase and surrender of the ferry to the use of the plain¬ 
 tiffs for forty years, with a reversion to the government, the 
 plaintiffs paying the college an annuity of 200/. during the term, 
 and the government making a reasonable compensation after¬ 
 ward for what would have been the income of the ferry. 
 
 The case in Palmer, 78, is in point. If the legislature had 
 said, ‘ whereas the college have a ferry, now leave is granted to 
 them to build a bridge,’ the bridge would have the same extent 
 of right as the ferry. It would be merely substituting one mode 
 of transportation for another ; like sail-boats for row-boats. So 
 
103 
 
 that the plaintiffs, holding the right of the college, have the 
 same extent of franchise, as if the college had been authorized 
 to substitute a bridge for their ferry. 
 
 But we need not rely on the ground of a transfer of the ferry. 
 We stand upon a grant from the legislature; and if necessary, 
 the Court will refer to the ferry, or suppose that our charter re¬ 
 fers to it, as descriptive of the extent of the grant. 
 
 We say that the recent act, incorporating the proprietors of 
 Warren bridge, impairs the rights vested in us by our charter. 
 Our property is taken from us, without any suitable provision for 
 compensation. 
 
 It is unnecessary to argue that an act of the legislature, im¬ 
 pairing the obligation of a contract, is unconstitutional; or that a 
 grant is a contract. The whole ground is covered by the cases 
 of Vanhorne's Lessee v. Dorrance, Fletcher v. Peck, New Jer¬ 
 sey v. Wilson and Dartmouth College v. Woodward. This 
 last was the case of a charily for public objects, and it was argu¬ 
 ed that the government might therefore control it; but the an¬ 
 swer was, that the plaintiffs were a private corporation, though 
 for the benefit of the public. The franchise now in question is 
 granted to a private civil corporation ; not to a public corporation 
 over which the legislature have a control. In 4 Wheat. 669, 
 in speaking of canal, bridge and turnpike corporations, Story J. 
 says, “ In all these cases, the uses may, in a certain sense, be 
 called public, but the corporations are private ; as much so in¬ 
 deed as if the franchises were vested in a single person.” Any 
 notion, therefore, which may be entertained, that the grant of our 
 bridge is connected with the public benefit, is of no consequence. 
 The question concerns a franchise. We contend that the late 
 act is a resumption of a part of a franchise, and all argument 
 about a free course of legislation is irrelevant; it is a question 
 of right. 
 
 The same rule of construction prevails in a question between 
 the government and their grantee, as between individuals. In a 
 case of contract, they stand on equal ground. The rule as to 
 grants of the crown being construed in favour of the crown, is 
 explained in the Dartmouth College case. If on the solicitation 
 of a party, a grant is made injurious to the crown, it is consid- 
 
104 
 
 ered that the king was deceived ; and hence the practice of in¬ 
 serting the words mero motu in crown grants, in order to entitle 
 the grantee to a more liberal construction. But the application 
 of the rule to parliamentary grants, was questioned by Eyre C. J. 
 in Boulton v. Bull, 2 H. Bl. 500. Ours is a grant of that 
 sort. And besides, the English rule was never adopted in this 
 commonwealth. 
 
 The plaintiffs being a private corporation, from the nature of 
 the case, our grant must be exclusive to some extent; and this is 
 a question of construction. The charter allows the erection of a 
 bridge “ in the place where the ferry between Boston and 
 Charlestown is now kept.” The plain implication is, that the 
 bridge was to be a substitute for the ferry. Had the words been 
 “ in place of,” that is, expressly as a substitute, they would not 
 have been stronger. “ Where the ferry is kept,” is descriptive 
 of the franchise. It is immaterial whether we do or do not 
 make out a privity between the proprietors of the ferry and those 
 of the bridge. Without such privity, the act authorizing the erec¬ 
 tion of a bridge in the place where a ferry is kept, gives the 
 same local extent. Our grant either has no extent beyond the 
 width of our bridge, or it has the common law extent, of keeping 
 down injurious competition, or it has the same extent as the old 
 ferry. If we can go a single foot beyond our planks, there can 
 be no question in this case. All the arguments showing that a fer¬ 
 ry generally, or this one in particular, is exclusive to a certain ex¬ 
 tent, apply equally to the bridge, indeed with greater force, be¬ 
 cause a greater outlay of capital was necessary in the case of the 
 bridge, and greater risk was incurred. 
 
 Assuming, what seems to be admitted, that if the defendants 
 were acting merely as individuals, without any license from the 
 legislature, they would be liable to us in an action for a nuisance, 
 (and yet if we cannot go beyond the length of our planks, it 
 should seem to be doubtful,) the question is, whether the legis¬ 
 lature could authorize them to build their bridge. In our view, 
 if an action would have lain, it is impossible to maintain that an 
 act of the legislature can protect the defendants. By no con¬ 
 struction can it take from the plaintiffs any right which they 
 could before have enforced. 
 
105 
 
 It is admitted that this franchise is private property, and that 
 the Warren bridge takes two thirds of our income. The whole 
 effect of the recent act is to take the fruits and profits of the 
 franchise ; for it is clear, that it does not resume the license to 
 obstruct navigation. It. is a mere question of money between 
 the treasurer of the commonwealth, and the proprietors of 
 Charles river bridge. As soon as the proprietors of the War¬ 
 ren bridge shall be reimbursed their expenses, the tolls received 
 at that bridge go to the government. The legislature put their 
 hands into our toll-dish and take the lion’s part. They in effect 
 say, this is a day of free competition, and we will enter into 
 competition with you for the money in your till. If there were 
 no constitution, such an act could have no force. 
 
 The legislature cannot grant what they do not possess. The 
 confusion in this case arises from considering these acts of the 
 legislature as laws; whereas they are grants, which are wholly 
 different. A law is a rule prescribed for the government of the 
 subject; a grant is a donation. In laws, the last in order of 
 time repeals the first; in grants, the first stands unaffected by 
 the last. Every grant supposes that the grantor has parted 
 with his right, and that he will not re-assert it. The question 
 then is, whether the defendants are protected by their act of in¬ 
 corporation in doing what they have done ; if they are not, their 
 bridge may be abated. We say that a right to build and main¬ 
 tain a bridge for the time stated, with a right to keep down 
 contiguous and injurious competition, has been granted to us ; 
 and if the legislature meant to grant to the defendants a fran¬ 
 chise within those limits, they have attempted to grant what 
 they had before granted to us. If our franchise does not ex¬ 
 tend above the supposed franchise of the defendants, we have 
 no ground of complaint. The case of Jackson v. Catlin, 2 
 Johns. R. 248 and 8 Johns. R. 406, establishes the principle, 
 that the terms used in a legislative grant, must, as in other 
 grants, be construed with reference to the power of the grantor, 
 and must be considered as not granting what the legislature had 
 not to grant. 
 
 But it is said that in England, after a writ of ad quod dam¬ 
 num executed, a grant of a second market &c. will be valid, 
 
 14 
 
106 
 
 and that as we have no such process, a second grant without 
 such a writ will be sustained. [C. J. Or rather, that the course 
 of proceedings before our legislature is equivalent to an ad 
 quod damnum .] An ad quod damnum is a judicial process, by 
 which inquiry is made upon the oath of honest and lawful men, 
 whether setting up a market &c. will be to the damage of the 
 king or others, and if to the damage, then to what damage. 
 There is nothing of this sort before a committee of the legisla¬ 
 ture. By the constitution, the legislature cannot exercise judicial 
 pow ers. We have a better protection. The jury is our ad quod 
 damnum. We have usually in our acts a provision for indem¬ 
 nity to persons injured, and for a trial by jury : and this is the 
 course now generally pursued in England. It has been decided, 
 that a legislative act appropriating private property to public uses, 
 is void, unless it contains a provision for a simultaneous compen¬ 
 sation. This Court have preceded, and the court in New York 
 have followed, in establishing this principle ; and the reason is, 
 that there is no security in legislative justice, but by holding such 
 acts to be void. The inquiry by the legislature, the supposed ad 
 quod damnum which is to settle our right, is by the party who are 
 to derive a benefit from stripping us of our rights. The legislature 
 cannot go further than to say, that a measure will be of public con¬ 
 venience and necessity ; if they are to determine that it will not 
 prejudice private rights, and such decision is to be conclusive, 
 the provision in the constitution is nugatory and inoperative. 
 
 But the counsel mistake in regard to the English law of ad 
 quod damnum. A grant after the execution of such a writ, is 
 not conclusive of the right of the grantee. Mosley v. Walker, 
 7 Barnw. & Cresw. 41, and Mosley v. Chadwick, ibid. 47, 
 note ; Hale De Portibus Maris, in Hargr. Tr. 59. But it is 
 proper that such writ should be issued, in order that the king 
 may not act without apparent reason. He would not intention¬ 
 ally grant what does not belong to him, and thereby put the true 
 proprietor to his action. But the doctrine is made clear by the 
 provision for a scire facias, at the suit of the party, to repeal the 
 second patent, where the same thing has been granted to two 
 patentees. If a scire facias will be issued in such case, a for¬ 
 tiori will an action lie while the second patent remains unre¬ 
 pealed. 
 
107 
 
 But however this may be, it is plain, that the legislature of 
 Massachusetts cannot make a grant which shall be conclusive of 
 the right of the grantee. By the constitution, on a question of 
 property, every subject has a right to a trial by jury; and if so, 
 how can a hearing before a committee of the legislature be 
 supposed to be conclusive ? The defendants say, that our 
 property has not been taken ; that what we call property, is not 
 property. We have a right to a judicial trial of that question. 
 
 Then is property taken by the government from the plain¬ 
 tiffs by the late act? The constitution does not say land, or 
 real estate, or personal estate, but it uses the most general word, 
 property. Is a franchise property ? The sum of 20,000 dol¬ 
 lars a year is taken from the plaintiffs. Is this property ? If 
 the defendants had taken this without a license from the legisla¬ 
 ture, it is admitted that we should have had a right of action ; 
 and for what ? for property. It is said on the other side, that 
 our property is not taken, but that our complaint arises from a 
 justifiable use of the public’s property, and that our loss is dam¬ 
 num absque injuria. Not so. Suppose our franchise, to the 
 extent which we claim, had been limited by monuments on the 
 banks of the river, and the legislature, reciting a public exigen¬ 
 cy for another bridge, should thereupon authorize a bridge 
 within those limits; would it not be appropriating our franchise 
 in whole or in part ? And if so, it is an appropriation of property. 
 They take our franchise, and the proceeds of our franchise. 
 Both are property. The franchise may descend or be convey¬ 
 ed, and in other respects has the incidents of property. The 
 provision in the constitution as to taking private property for 
 public use, is to be construed liberally, or at least fairly for the 
 subject. Our franchise is clearly taken by the recent act. Is 
 it not appropriated to the public use ? If not, the legislature 
 had no right to take it at all. 
 
 But further, we contend that the power of the legislature to 
 pass such an act as the one in question, is taken away by the 
 constitution of the United States. 
 
 A grant is admitted to be a contract. The defendants say 
 our charter is a mere license to build a bridge. Be it so ; a li¬ 
 cense is a contract. Our grant or license is for a valuable con- 
 
108 
 
 sideration ; for services to be rendered. It operates as a cove¬ 
 nant for quiet enjoyment. 
 
 As the legislature could not make a grant inconsistent with a 
 previous grant, the defendants must say, either that our franchise 
 does not extend beyond the planks of our bridge, or that the 
 legislature retained a tacit right to resume their grant. There 
 is no evidence of such a reservation. Suppose our limits up and 
 down the river had been defined ; could the legislature, upon 
 any tacit reservation or supposed public exigency have granted 
 other bridges within those limits ? It will not be asserted. And 
 yet in fact such limits are fixed. The words of the grant, by 
 necessary implication, limit the distance to which our franchise 
 shall reach ; and if not, the law settles the extent. If the tolls 
 of a ferry or bridge are not fixed by the grant, the grantee may 
 take reasonable tolls. So there must be a reasonable construc¬ 
 tion as to the extent of the franchise. The law says, a rival fer¬ 
 ry or bridge shall not be set up so near as to take away the cus¬ 
 tom. And this too is to be construed reasonably. If we have 
 any exclusive right beyond our planks, it must cover the place 
 where the new bridge is erected. The direct and necessary ef¬ 
 fect of the new bridge is to take away our custom, construing 
 these terms most favourably for the defendants. 
 
 There would be more reason to contend, as a matter of public 
 necessity, that our bridge should be removed as obstructing nav¬ 
 igation, than that our money should be taken. But whatever 
 might be the plea of necessity in that case, the right of navigation, 
 the -peculiar right of the government, is not resumed ; while our 
 money, the fruits of our franchise, which could in no way be 
 affected by the public exigences, is taken from us. It is said our 
 doctrine would obstruct public improvements. That we deny. 
 If another bridge was wanted, it might have been had, without in¬ 
 volving the necessity of taking away our revenue. The govern¬ 
 ment might have built it at our expense, and let us take the tolls. 
 
 The question of public necessity requiring another bridge, 
 is not now open. \Ve deny the fact, and we deny the compe¬ 
 tency of this Court to try the question of convenience, or the 
 effect of it, if proved. Public necessity is apt to be public feel¬ 
 ing, and on this rock we are in danger of making shipwreck of 
 
109 
 
 the bill of rights. In Martin v. Commonwealth , 1 Mass. R. 
 357, Parsons says, that prerogative is more dangerous in a pop¬ 
 ular government than in a monarchy ; that in England, it is the 
 cause of one against the whole, here it is the cause of all against 
 one ; and therefore here it is of more importance that judicial 
 courts should watch the claim of prerogative more strictly. In 
 JVeivburgh Turnpike Co. v. Miller , 5 Johns. Ch. R. 109, 
 which was the case of a turnpike road, Chancellor Kent lays 
 out of view all considerations of public convenience or necessity, 
 “ as altogether inapplicable to the question of right.” In Mosley 
 v. Walker , 7 Barnw. Si Cresw. 52, Lord Tenterden says, “ If 
 the ancient market has been held in the public street, can we say 
 that because population and commerce have increased, and that 
 a greater number of carriages pass through the street in modern 
 times than passed in ancient times, the lord, therefore, is to lose 
 his franchise? ” We take private property for public use more 
 freely in this country than would be tolerated in England. We 
 take it even for speculation. 
 
 In regard to the compensation provided for in the act of 1827, 
 it is to be made to any person or corporation whose real estate 
 shall be taken by the defendants. The word property , which 
 is the constitutional word, is said to have been excluded ex in- 
 dustria ; at any rate, it is not in the statute. On examining the 
 precedents of private acts in England, in similar cases, it will be 
 found, that in regard to indemnity to persons whose rights are 
 affected, they embrace every species of interest. 
 
 But it is contended on the other side, that the legislature 
 have not taken away any right belonging to us. On what ground 
 then do they require the Warren bridge to pay half of the annu¬ 
 ity to the college ? Why make those proprietors pay our debts, 
 if they have not taken our property ? It would be difficult to 
 find in the history of our legislation an act like this. The legisla¬ 
 ture acknowledge, on the face of the act, that our right is taken, 
 and they undertake to debar us from a trial by jury, and to 
 judge themselves of the compensation to be made to us. They 
 direct the annual sum of 100?. to be paid for us, and they take 
 from- us the annual sum of 20,000 dollars. 
 
110 
 
 In case the Court shall think that our rights are invaded, it 
 will not be necessary to destroy the new bridge. The deci¬ 
 sion need not run against the public convenience. The bridge 
 may be allowed to stand, as the legislature have given their con¬ 
 sent to the obstruction of navigation, and the Court can adjudge 
 the defendants to be our trustees. Such a decree would perhaps 
 lead to an agreement between the parties. 
 
 Some general remarks have been made, to show the solicitude 
 of courts not to overturn a legislative act, unless its unconstitu¬ 
 tionality is manifest. Certainly if a judge has doubts, they will 
 weigh in favour of the act. But it should be considered, that all 
 cases of this sort will involve some doubt; for it is not to be sup¬ 
 posed that the legislature will pass an act which is palpably uncon¬ 
 stitutional. The correct ground is this, that the Court shall inter¬ 
 fere and declare an act to be void, where the case, which may 
 have been doubtful, shall be made out to be clear by examina¬ 
 tion. Besides, members of the legislature sometimes vote for a 
 law, of the constitutionality of which they are in doubt, upon the 
 consideration that the question may be determined by the ju¬ 
 diciary power. This act of 1S27 was passed in the house of 
 representatives by a majority of five or six votes. We could 
 show, if it were proper, that more than six members voted for it 
 because the unconstitutionality of it ivas doubtful; leaving it to 
 this Court to determine the question. Now if the legislature 
 are to pass a law because its unconstitutionalily is doubtful, and 
 the judge is to hold it valid because its unconstitutionality is doubt¬ 
 ful, in what a predicament is the citizen placed. The legislature 
 pass it de bene esse ; if the question is not met here and decided 
 upon principle, then the responsibility rests nowhere, and the con¬ 
 stitutional provision for annulling an act, instead of a shield, is a 
 sword. It is the privilege of an American judge to decide on con¬ 
 stitutional questions. It has raised the dignity of the judicial sta¬ 
 tion. Without entertaining an ill opinion of legislative bodies, it is 
 no disparagement of them to say, that judicial tribunals are the 
 only ones suitable for the investigation of difficult questions of 
 private right. 
 
 The case was continued nisi, and during the November term 
 1829 the judges delivered their opinions seriatim. 
 
Ill 
 
 Morton J. The plaintiffs, in their bill, complain that the de¬ 
 fendants are engaged in erecting a bridge across Charles river, 
 which, when erected, will divert the travel from the plaintiffs’ 
 bridge, and as to them will be a nuisance. And they pray for a 
 perpetual injunction against the defendants, to restrain them from 
 completing the bridge which they are employed in constructing, 
 and also from suffering passengers to go over the same. 
 
 When the bill was filed, the plaintiffs moved for an immediate 
 injunction to prohibit the defendants from further proceeding in the 
 construction of their bridge, until they should file an answer to the 
 bill and there should be a hearing and final decision upon the 
 merits of the case. This question was fully argued and duly 
 considered by the Court. And it was determined, that under 
 the statute of 1827, c. 38, “giving relief in equity in cases of 
 waste and nuisance,” this Court had jurisdiction of the case, and 
 possessed the power to grant injunctions to prevent the creation 
 of nuisances, as well as to abate them when created ; but that 
 the present was not such a clear and incontrovertible case of 
 nuisance, or one of such urgent necessity, as to call for the ex¬ 
 ercise of that extraordinary power which must necessarily be 
 founded on a prejudication of the case. No further opinion 
 was then given or formed in relation to the important question 
 now presented for our consideration, than that it was not so clear 
 and easy of solution as to admit of even a temporary decision, 
 without an answer from the defendants, and a full hearing upon 
 the bill and answer. 
 
 Since the commencement of this suit, the defendants’ bridge 
 has been completed and is in use. The effects which the 
 plaintiffs apprehended from it have been fully realized, in the 
 diversion of a large portion of travel from their bridge. 
 
 The early measures adopted to restrain and prohibit the 
 erection of the new bridge, fully apprized the defendants of the 
 grounds and extent of the plaintiffs’ claims. And the defen¬ 
 dants, with full knowledge of the question raised in relation to 
 their authority, having chosen to proceed rather than await the 
 decision of this tribunal, have placed themselves upon their 
 strict constitutional rights, and can have no reason to complain 
 or expect sympathy, should their authority turn out to be void, 
 
 \ 
 
112 
 
 their bridge be decided to be a nuisance, and a forcible abate¬ 
 ment of it by the arm of civil power, be decreed. 
 
 The Warren bridge, being over a navigable river or arm of 
 the sea, is clearly a nuisance, unless authority to erect it be de¬ 
 rived from the commonwealth. But if unauthorized, it is a 
 nuisance of such a public nature, that the plaintiff's cannot com¬ 
 plain of it, in this form, unless their rights are injuriously affect¬ 
 ed by it. A public nuisance is the subject of indictment, but 
 not of private action at law or in equity, unless special damage 
 be sustained. 
 
 An authority to erect a bridge over navigable waters may be 
 valid as to the public, so as to bar an indictment and prevent an 
 abatement of it as a public nuisance, and yet be void as to indi¬ 
 viduals whose property is destroyed or private rights violated by it. 
 
 It appears by the bills as well as answers, that the Warren 
 bridge was erected under the authority of an act of the legisla¬ 
 ture of the commonwealth. And it is not pretended that the 
 defendants have failed to avail themselves of the provisions of 
 the act, or in any w>ay varied from or exceeded the powers 
 vested in them by it. 
 
 The question which is distinctly presented for our decision, 
 and which must necessarily be directly met in the adjudication 
 of this case, relates to the validity of the defendants’ charter. 
 Is the “ Act to establish the Warren Bridge Corporation,” pass¬ 
 ed on the 12th of March 182S, valid and operative, or null and 
 void ? It purports to authorize the construction of a bridge 
 over the navigable waters of Charles river. It is an act of the 
 highest legislative power of the commonwealth, and must have 
 force as a law, unless the legislature, in passing it, transcended 
 their powers, or unless it contravenes some express provision 
 of the constitution of this state or of the United States. 
 
 It is an axiom in our government, that all legitimate power 
 emanates from the people. Legislators act by delegated au¬ 
 thority, and only as the agents of the people. The constitution 
 contains the grant of their powers. If they exercise any not 
 contained in this instrument, it is usurpation. And such acts 
 are void for the want of authority to make or pass them. 
 
 Navigable waters are public property, and the superintendence 
 
113 
 
 and regulation of them and of all other means of communication 
 between different parts of the commonwealth, clearly come 
 within the general powers vested in our legislature. Grot. bk. 
 2, c. 3, § 9 ; Yattel, bk. 1, § 100, 244 ; 1 Bl. Com. 264; 2 
 Inst. 624 ; 1 Hawk. P. C. c. 76, § 1 ; Hale De Jure Maris, 
 bk. 3, § 9. The grant of the charter of the Warren bridge 
 is therefore within the general scope of legislative authority, 
 and is not a case of excess of power. So far as the charter 
 operates as a license to throw an obstruction across a navigable 
 river, and so far as the public interest is concerned, it seems to 
 be a valid act. Whatever may be the opinion of the Court as 
 to its effect upon the plaintiffs’ rights, the defendants ought to 
 be protected from a public prosecution, and this elegant speci¬ 
 men of convenience and skill in this branch of architecture be 
 spared from a forcible abatement as a public nuisance. Should 
 the plaintiffs prevail, it is hoped the court will find some adequate 
 mode of redress consistent with the preservation of this great 
 public accommodation. 
 
 The act incorporating the proprietors of the Warren bridge 
 contains in itself no provisions prohibited by the constitution ; 
 and having been passed in pursuance of the general powers 
 vested in the legislative department by the people, it can be 
 avoided only by showing that there existed in this particular 
 case some extraneous constitutional impediment to its enactment. 
 If such impediment exists, it must have been created by the 
 legislature itself. Having been invested with the power, it could 
 not be divested but by its own act, or an act of the sovereign 
 power of the people in altering the constitution itself. The leg¬ 
 islature can divest itself of power and bind successive legisla¬ 
 tures, only by some act in the nature of a compact. If one 
 legislative body makes a valid grant or contract of any kind, it 
 would be inconsistent with the first principles of natural justice, 
 as well as of constitutional law, for a succeeding legislature to re¬ 
 sume the grant or avoid the contract. 
 
 The plaintiffs claim under a grant from the government, 
 either immediately to themselves, or derived to them through 
 the medium of Harvard College. That these grants vested in 
 the respective grantees, beneficial interests, and constituted 
 15 
 
114 
 
 contracts between them and the commonwealth, is too clear 
 and well settled to be questioned. New Jersey v. Wilson, 
 
 7 Cranch, 164 ; Terrett v. Taylor, 9 Cranch, 49 ; Dartmouth 
 College v. Woodward, 4 Wheat. 560. 
 
 The plaintiffs contend that the defendants’ charter is invalid, 
 because it is inconsistent with the last clause of the tenth section 
 of the constitution of the United States, with the fifth article of 
 the amendments to the same, and with the tenth article of the 
 declaration of rights of this commonwealth. They attempt to 
 show that the grant to the defendants impairs the obligation of 
 the contract existing between the commonwealth and them¬ 
 selves ; and also that their private property has been taken and 
 appropriated to public uses without a just and reasonable com¬ 
 pensation. 
 
 Whether the grant to the defendants interferes with the vested 
 rights of the plaintiffs under the former grants, must depend 
 upon the true construction of the several acts of the legislature 
 making those grants. 
 
 The plaintiffs claim an exclusive right to take toll of all per¬ 
 sons passing over Charles river between Charlestown and Bos¬ 
 ton. This light they derive to themselves in two ways. First, 
 by a legislative grant to Harvard College and an assignment by 
 the college to themselves. Secondly, by a direct grant from 
 the government to themselves. 
 
 In relation to the first branch of the subject two inquiries 
 naturally suggest themselves. First, what was the extent of the 
 grant to Harvard College, and what did the grantees take under 
 it ? Secondly, has the right or interest which the college took, 
 whatever may have been its extent, passed to the plaintiffs ? 
 
 The grant to the college, as made, confirmed and explained 
 in several legislative acts, was of a ferry, or of the income or 
 revenue of a ferry. The import and meaning of these several 
 ancient acts have been fully discussed, and several questions 
 raised in relation to them, which it will be proper briefly to con¬ 
 sider. 
 
 Whether we refer to the act of 1640, which purports to be 
 a direct grant of the ferry, or to the subsequent acts recognizing 
 and confirming the former grant, as of the income or revenue 
 
115 
 
 of the ferry, it is manifest that some permanent indefeasible 
 interest was intended to be passed, and did actually vest in the 
 college. To construe these acts into mere gratuities or dona¬ 
 tions during the pleasure of the legislature, would be equally 
 irreconcilable with the beneficent objects which they have in 
 view, the terms of the acts, and the practical construction of 
 them for more than a century and a half. 
 
 Ferries in this country, as well as in England, are' the sub¬ 
 ject of property, and like other incorporeal hereditaments, are 
 capable of transmission by grant or devise. In England their 
 original source is the prerogative of the Crown. Churchman v. 
 Tunstal, Hardr. 163. But in this state they can only be de¬ 
 rived from the legislature. 
 
 In the further discussion of this subject I shall proceed upon 
 the assumption, that the franchise of the ferry was the property 
 of the college previous to and until the grant of the plaintiffs’ 
 charter. 
 
 The extent of this franchise or right must depend upon the 
 construction of the act by which it was created. And it is ap¬ 
 parent from an examination of the several acts and the usage 
 under them, that the college took and held the franchise sub¬ 
 ject to the general superintendence and regulation of the legis¬ 
 lature of the commonwealth. Neither the management of the 
 ferry, nor the number of boats to be employed, nor the rate of 
 toll, is established in either of these acts. Was the power to 
 regulate these subjects granted to the college, or reserved to the 
 legislature ? If the former, then public convenience, so far as 
 related to the transportation across the river by this ferry, was 
 made to depend upon the pleasure of an interested corporation, 
 instead of the sovereign power of the state. It cannot be sup¬ 
 posed, that the college had the exclusive right to the transpor¬ 
 tation across the river, and also the unlimited power to fix the 
 rate of toll for such transportation. 
 
 The college, in accepting the right granted, assumed corres¬ 
 ponding obligations. If they were to receive the profits of the 
 ferry, they were bound to furnish reasonable accommodations for 
 the public ; to submit to the general regulations of ferries 
 throughout the state ; and to take such just and reasonable toll 
 
116 
 
 as from time to time the legislature should establish. Such 
 seems to be the tenure by which ferries were generally holden, 
 except in cases where the toll or other stipulations were fixed 
 in the grant. 
 
 The grant of a ferry confers on the grantees an exclusive 
 right, but the extent of the right must depend upon the terms 
 of the grant. 
 
 The grant of an exclusive right to take toll at a ferry, or 
 bridge, or turnpike, is not a monopoly, which is deemed so 
 odious in law, nor one of the particular and exclusive privileges 
 distinct from those of the community, which are reprobated in 
 our bill of rights. The grant is upon a condition precedent, 
 which requires the performance of services beneficial to the 
 public, before the right to lake toll vests. 
 
 In all cases the legislature may make the grant more or less 
 exclusive, and more or less extensive, according to their opinion 
 of the expediency of the measure or the necessity of the case. 
 Originally, the legislature might have established a ferry with 
 an exclusive right to the transportation of all passengers across 
 Charles river in its whole extent, or one with the right to all the 
 transportation between Charlestown and Boston, or several be¬ 
 tween those two towns, each with a right only to take toll of such 
 passengers as might choose to use it. 
 
 This, though an ancient, is not a 'prescriptive ferry. Co. 
 Lit. 115a; Hull v. Horner, Cowp. 102. Its commencement 
 is clearly shown. But prescription always presupposes a grant; 
 and I can perceive no difference between the two, except in the 
 mode of proof. In prescription, the proof is by the use, and 
 the right presumed to be granted is co-extensive with the use. 
 If the grant itself be produced, the extent must be determined 
 by the terms of the grant. In the case before us, if a prescription 
 had been shown for the college to transport across Charles river 
 all passengers between Charlestown and Boston, it would have 
 been evidence that a grant to that extent had been made. So 
 if a deed, conveying the same exclusive right, had been produced, 
 it would necessarily have established the same right in the col¬ 
 lege. The only difference would have been in the mode of proof. 
 
117 
 
 The grant to the college is of record. The history of the 
 origin and continuance of the ferry is well known, and clearly 
 shown in the exhibits filed in the case. 
 
 In 1630, the governor was ordered to permit the first appli¬ 
 cant “ to set up a ferry betwixt Boston and Charlton,” at a cer¬ 
 tain rate of toll. 
 
 In 1633, Mr. Brown was allowed to keep a ferry over Charles 
 river against his house. Whether this was instead of, or in ad¬ 
 dition to the former proposed ferry, does not clearly appear. 
 
 In 1635, a ferry was established “ on Boston side to trans¬ 
 port men to Charlton and Winnesimet.” 
 
 In 1637, the governor and treasurer were empowered to let 
 the ferry between Boston and Charlestown at a rent of 40?. 
 per annum , for the term of three years. In pursuance of this 
 authority the ferry was let to a man by the name of Converse. 
 
 In 1638, “ a ferry is appointed from Boston to Winnesimit, 
 Noddle’s Island and the ships—the person to be appointed by 
 the magistrates of Boston.” 
 
 In 1640, the treasurer and others were empowered “to let 
 the ferry between Boston and Charlestown to whom they pleas¬ 
 ed ; after the expiration of the subsisting lease ” to Converse. 
 
 In August 1640, “ the ferry between Boston and Charlestown 
 is granted to the college.” 
 
 In 1654 and 1655, the existence and validity of the grant is 
 recognised and continued under the name of the profit or rent 
 of the ferry. 
 
 It is manifest that the right of the college to the ferry was 
 not founded on prescription. And the plaintiffs cannot now call 
 to their aid any principles or reasoning peculiar to this kind of 
 title, or any rules of evidence applicable to this mode of proof. 
 
 By the grant to the college it is contended, that the exclusive 
 right of transportation between Boston and Charlestown passed. 
 The case of Tripp v. Frank , 4T. R. 666, is relied upon to sup¬ 
 port this position. But a very cursory examination of that case will 
 show, that the plaintiffs can derive no aid from it, in support of 
 their construction of this grant. That was a case of prescrip¬ 
 tion, and not of express grant. In that case the plaintiff - proved 
 an exclusive prescriptive right to the transportation of persons 
 
118 
 
 across the Humber between Hull and Barton; but in this, the 
 question in controversy is, whether the exclusive right of transpor¬ 
 tation between Boston and Charlestown was granted or not. In 
 that, the exclusive right between the two towns was not dis¬ 
 puted, but the only question was, whether a transportation from 
 one of those towns obliquely across the river to another town 
 two miles lower down, was a violation of the plaintiff’s exclu¬ 
 sive right. The court held that it was not, and that the trans¬ 
 portation across the river from one of those towns to any point 
 above or below the other, unless done to avoid the plaintiff’s 
 ferry and in fraud of his right, was not an infringement of his 
 franchise. 
 
 What then is the true meaning of this grant to the college ? 
 
 It was not the creation of a new franchise, the extent and 
 limits of which were then to be established ; but it was the grant 
 of an old one, with its then existing rights and privileges. The 
 terms “ the ferry,” as used in the grant, clearly recognise its 
 pre-existence. No new rights or privileges were then added, 
 nor was there any attempt to fix or define the old ones. But 
 it passed just as it existed at the time of the grant. 
 
 The prior acts creating and regulating this ferry are so brief 
 and general, that it js very difficult to ascertain the precise 
 meaning of them, or the extent of the franchise which was 
 thereby granted. Indeed it is not probable that any definite 
 limits were intended to be affixed to it. This seems to me to 
 be a case in which usage and a contemporary practical exposition 
 of the grant are admissible evidence, and furnish a pretty safe 
 guide in its construction. That the tendency of this evidence, 
 so far as we have gone into it, is to support the exclusive right 
 to the extent claimed, I think cannot be doubted. But upon 
 this it is not necessary to give an opinion, for the view which I 
 take of the subsequent facts of the case renders a decision of 
 this point, or the further investigation of this part of the sub¬ 
 ject, unnecessary. 
 
 For I am clearly of opinion, that the franchise of the ferry, 
 or the right of the college in it, whatever might have been its 
 extent, never passed to the plaintiffs. And further, had it pass¬ 
 ed, I think they could not avail themselves of it in support of 
 this bill. 
 
119 
 
 The right of the college did not vest in the plaintiffs. The 
 act of the legislature did not pass it. The legislature itself had 
 no power to transfer it. It could only pass by the act of the 
 corporation of Harvard College. The constitution no where 
 invests any branch of the government with the despotic power 
 of transferring the property of one man or corporation to an¬ 
 other. Such an act would be subversive of the principal ends 
 of government, of the fundamental laws of the social compact, 
 and of the principles of reason and moral rectitude, as well as 
 irreconcilable with the letter and spirit of our national and 
 state constitutions. And the legislature could no more take 
 private property from one person and vest it in another, with an 
 indemnity, than without one. It is only in case of public exi¬ 
 gency that private property can be taken, and then only for 
 public use, and upon making a just and reasonable compensa¬ 
 tion. There is not the slightest evidence of any intention or 
 attempt on the part of the legislature, to transfer any property 
 or right of the college to the proprietors of Charles river bridge. 
 
 If the plaintiffs ever acquired the franchise of the ferry, it 
 must have been by purchase. This incorporeal hereditament 
 could only pass by deed. There exists no written instrument 
 under seal, and it is not pretended that there is any legal con¬ 
 veyance of this estate. 
 
 It-istrue, that in equity an agreement to convey might be holden 
 to be equivalent to an actual conveyance. But where is the evi¬ 
 dence of any contract between these parties ? It is not in writing. 
 And I have seen no proof of any kind, that any negotiation or 
 treaty was ever entered into between them. There is, in short, 
 nothing in the original application for the charter of Charles 
 river bridge, in the proceedings upon that application, in the 
 transactions of Harvard College, or in the plaintiffs’ act of in¬ 
 corporation itself, which has the slightest tendency to convince 
 my mind, that there was any intention or desire in any of the 
 parties to make a contract of sale or a transfer of the franchise 
 of the ferry. 
 
 The charter of the Charles river bridge was a compact. 
 The parties to it were the commonwealth on one part and the 
 corporation on the other. The charter itself does not purport 
 
120 
 
 to convey the franchise of the ferry, or to vest in the corpora¬ 
 tion any right appertaining to a ferry. The college was no par¬ 
 ty to it, and its validity did not depend upon any act of the col¬ 
 lege. Its assent would not give life to the charter, nor would 
 its dissent defeat it. 
 
 If the plaintiffs are the owners of the franchise of the ferry, 
 what will become of their ferry right at the expiration of their 
 charter? Will they then have a right to put the ferry in 
 operation again, and complain of the old bridge for interfering 
 with these rights ? Their charter answers these inquiries. 
 The bridge will revert to the commonwealth, and no ferry right 
 can prevent the use of it in such manner as the legislature shall 
 direct. If the plaintiffs had been the proprietors of the ferry, 
 in accepting the charter of the bridge they must necessarily 
 have surrendered the franchise of the ferry, or it would have 
 become merged in that of the bridge. 
 
 The grant to the plaintiffs was inconsistent with the vested 
 rights of the college, and destructive of their private property. 
 The bridge was to be erected upon the ferry-ways. They 
 both could not exist together. The act of the legislature directly 
 interfered with the use of the franchise of the ferry. But in my 
 opinion it was a justifiable interference. The public exigency 
 required, that the property of the college should be taken for 
 the public accommodation, and a compensation was provided, 
 which the college accepted, and of which they never have 
 complained as being unreasonable or unjust. Perry v. Wilson, 
 7 Mass. R. 395 ; Stevens v. Middlesex Canal, 12 Mass. R. 
 468; Vanhorne's Lessee v. Dorrance, 2 Dallas, 304 ; Mar- 
 bary v. Madison, 1 Cranch, 137 ; Wilkinson v. Leland, 2 
 Peters’s Sup. Ct. R. 627; Gardner v. JVetvburgh, 2 Johns. 
 Ch. R. 168. 
 
 When the ferry was established, and for a long time after, it 
 was deemed a mode of conveyance sufficient for the public ac¬ 
 commodation. But in about a century and a half the popula¬ 
 tion and business of the two adjoining towns and of the surround¬ 
 ing country, had increased so much as to require a different 
 mode of communication. Although at first the ferry might be 
 deemed adequate to the public wants, yet it soon became ob- 
 
121 
 
 vious, that the time would arrive when public convenience and 
 necessity would demand a more easy mode of transportation. 
 Of the time when such change became necessary, the legisla¬ 
 ture were the exclusive judges. They have determined it; 
 and of their decision no one has the right, or, so far as I know, 
 the inclination to complain. 
 
 1 am therefore of opinion, that the legislature, having rightful¬ 
 ly decided that the public exigency required that the franchise 
 of the ferry should be taken, did seize it, after providing a suit¬ 
 able indemnity, not for the purpose of granting the same to the 
 plaintiffs, but to enable them to make a compact by means of 
 which the public wants should be satisfied in a particular in 
 which the ferry was insufficient to answer that purpose. 
 
 The charter of the plaintiffs was rightly granted, and consti¬ 
 tuted a valid compact between them and the commonwealth, 
 the import of which we shall hereafter consider. But it seems 
 to me very clear, that there was no contract made by the plain¬ 
 tiffs, to which the college was a party, nor any other'act done 
 by the college whereby they transferred their right to the plain¬ 
 tiffs ; that neither in law nor equity can the plaintiffs be consid¬ 
 ered the successors or assignees of the college. 
 
 But if they were, I cannot perceive how they could support 
 their present bill on the right of the ferry. They never pre¬ 
 tended to use the ferry. It has been discontinued for more 
 than forty years. They do not complain of any loss of passen¬ 
 gers in their ferry-boats, for they have none. Their ownership 
 of the ferry would not have authorized them to build a bridge. 
 Pain v. Patrick, 3 Mod. 294. Their authority to do this de¬ 
 pends upon their charter, and the whole injury of which they 
 complain, is the diversion of travellers from their bridge, and 
 the consequent loss of toll. The plaintiffs must therefore rest 
 the support of their bill solely upon the grant of the legislature 
 to them. 
 
 This brings us to the consideration of their charter. By this 
 certain exclusive rights are secured to them, and the question 
 which we are now to consider is the extent of these exclusive 
 rights. I have endeavoured to show, that upon the correct solu¬ 
 tion of this question the decision of this case must depend. 
 
 16 
 
122 
 
 The act incorporating the proprietors of Charles river bridge 
 was accepted by them. It then became a compact between 
 them and the commonwealth. Neither party has any right to 
 violate it. 
 
 The charter, which was originally limited to forty years, was, 
 by a subsequent act, extended to seventy. That this extension 
 was fairly and rightfully obtained, has not been questioned by 
 the defendants’ counsel in the present argument. And I have no 
 doubt that it was duly accepted by the plaintiffs, and now gives 
 them the same right which they would have possessed under 
 their charter, had it extended seventy instead of forty years im 
 its commencement. I shall therefore treat it as a subsisting 
 compact, without reference to the period of its first limitation. 
 
 What are the terms of this compact ? The corporation on 
 their part bound themselves to erect and maintain, during the 
 time limited in their charter, a bridge of the description, and ac¬ 
 cording to the terms mentioned in the act, and to pay to Harvard 
 College two hundred pounds annually during the same period. 
 On the other hand, the commonwealth contracted, that the 
 plaintiffs should have and enjoy during the same term the bene¬ 
 fits and privileges of a corporate body, should hold and manage 
 the bridge then to be erected, with all its privileges and advan¬ 
 tages, as corporate property, and should have a right to demand 
 and receive of all passengers over the bridge a specified rate of 
 toll. These are the principal stipulations of the respective par¬ 
 ties contained in the charter ; and besides these there are no ex¬ 
 press covenants on the part of the commonwealth, bearing upon 
 the question under consideration. There is no warranty that the 
 channels of communication to and from the bridge should remain 
 the same as they then were, or that the public business, legis¬ 
 lative or judicial, should continue to be done in the same places 
 it then was, and it is manifest, that any loss of travel by a change 
 in either of these respects would be a damage to the plaintiffs, 
 of which they would have no right to complain. 
 
 The plaintiffs are vested with an exclusive right to take the 
 stipulated rate of toll, and the legislature have no constitutional 
 power to reduce, alter or abolish it. But of whom are the plain¬ 
 tiffs entitled to receive this toll ? Is it of all persons having oc- 
 
123 
 
 casion to pass Charles river, or of all persons passing between 
 Charlestown and Boston, or only of such persons as may actu¬ 
 ally pass over their bridge ? 
 
 The right of taking toll is not co-extensive with the river itself, 
 because at the date of the charter there was a bridge at Cam¬ 
 bridge, and the charter must be construed with reference to the 
 state of things at that time. 
 
 The act of incorporation does not limit the toll to the towns 
 of Boston and Charlestown, nor is there any reference to the 
 travel between those two towns, unless it be in the title of the 
 act. There is no rule in construing statutes better settled, than that 
 the title of an act does not constitute a part of the act. The 
 charter itself does not describe the bridge as between Charles¬ 
 town and Boston, but grants authority to erect “ a bridge over 
 Charles river in the place where the old ferry was then kept.” 
 These towns are not named, except for the purpose of de¬ 
 scribing the then existing ferry. There are therefore no words 
 used in the charter, limiting the plaintiffs’ right to the travel be¬ 
 tween those two towns. 
 
 The ferry was manifestly referred to for the purpose of fix¬ 
 ing the place where the bridge should be located, and not with 
 a view of defining the rights granted to the proprietors. 
 
 The inference seems to me to be unavoidable, that the grant 
 must be construed either to vest a right to take toll of all passen¬ 
 gers across Charles river below Cambridge bridge, or only a right 
 to take toll of such persons as, under all the changes which the 
 population, business and state of the country might undergo, 
 should choose to pass at this bridge. In other words, that the 
 exclusive right either extends from the mouth of the river to 
 Cambridge bridge, or is limited to the bridge itself. If this be 
 not a necessary alternative, I would inquire what points upon 
 the river above and below the bridge can be fixed upon as the 
 specific boundary of the plaintiffs’ right ? I have shown that the 
 limits of the two adjoining towns do not constitute this boundary. 
 It cannot be presumed that the legislature of the commonwealth 
 would make a grant of a valuable franchise so vague and indefi¬ 
 nite in its terms as to be unintelligible: nor can it be presumed 
 that the grantees would accept such a grant. The presumption 
 
124 
 
 is an impeachment of the discernment and forecast of the cor¬ 
 porators as well as of the wisdom of the legislature. By adopt¬ 
 ing either of these alternatives we have a grant with definite in¬ 
 telligible limits. By rejecting them and seeking some interme¬ 
 diate point, we are left without any guide, and are compelled 
 to depend on conjecture, or general notions of justice or ex¬ 
 pediency, which will be different in different individuals, to de¬ 
 termine the extent of a franchise, which ought to be well de¬ 
 fined and certain. If we are necessarily brought to choose be¬ 
 tween these two alternatives, which shall we adopt ? 
 
 In the discussion of this subject, I think much aid may be 
 derived from an examination of the charters of other private 
 corporations. Bank incorporations, though not precisely analo¬ 
 gous, are not entirely dissimilar. They owe and perform one¬ 
 rous duties to the commonwealth, which form a good considera¬ 
 tion for the grants of their charters. They pay a heavy tax to 
 the state, and make loans to it, when required by the legislature, 
 at a lower rate of interest than is taken from other debtors. 
 
 The legislature might for a limited time, and upon proper 
 considerations, grant to a corporation the exclusive right of 
 banking within any town or county or throughout the common¬ 
 wealth. And it was once contended by learned and respecta¬ 
 ble men, that the first bank-charter gave this extensive exclusive 
 right. This opinion is undoubtedly an incorrect one, and is now 
 generally exploded. And yet it seems to me, that the grant of 
 a bank in a particular town has some points of similarity to the 
 grant of a bridge across a river at a particular place or between 
 two towns. If new banks are established in the same town or 
 place, the old one suffers perhaps as much by injurious compe¬ 
 tition, as the proprietors of an old bridge by the erection of a 
 new one across the same river or between the same towns. 
 Some of the arguments in favour of an exclusive right are ap¬ 
 plicable to both cases. It is however well settled and indispu¬ 
 table, that a bank-charter does not contain any restriction upon 
 the legislative power, which will prevent the establishment of 
 rival institutions. 
 
 Turnpike charters are still more analogous. Perhaps it 
 would be difficult to point out the difference between the rights 
 
125 
 
 of bridge and turnpike corporations in this respect. Both are 
 intended for the public accommodation by furnishing facilities 
 for travel and transportation. The proprietors of both owe sim¬ 
 ilar duties to the public. They are bound to keep them in re¬ 
 pair and convenient for use, and both derive their support from 
 the same source, viz. the tolls which they are authorized to levy. 
 The charters of both ought therefore to be expounded by the 
 same rules of construction. 
 
 How far have the proprietors of turnpikes an exclusive right ? 
 Is it a violation of their charters for the legislature to grant new 
 turnpikes, or the county commissioners to lay out new roads, 
 which will divert any portion of travel from them ? If so, none 
 of the older turnpike charters are inviolate, and very few of the 
 more recent ones are valid. Scarcely a turnpike has been estab¬ 
 lished in the state since the first, which has not diverted more 
 or less of the travel from the former ones. Are these charters 
 void? If a very small diversion of travel is not inconsistent 
 with a former charter, how much will it require to render it 
 void? Will one quarter, or one half, or three quarters do it? 
 If it is a matter of right founded on contract, the slightest injury 
 is as truly a violation of the contract as the greatest, even the 
 entire destruction of the franchise. In relation to turnpikes, I 
 can see no medium between the smallest diversion of travel, 
 and the limitation of the grant to the turnpike road itself. Ei¬ 
 ther the right is to receive toll of all persons who would pass over 
 the road without any alteration of the public channels of com¬ 
 munication, or it is only to take toll of such as may pass under 
 any changes which the progressive improvements of the country 
 may demand. I can entertain no doubt which of the two con¬ 
 structions ought to be adopted. Turnpike charters have re¬ 
 ceived a practical exposition, which, though never sanctioned 
 by judicial authority, has been long acquiesced in, and is be¬ 
 lieved to be a sound one. In many cases the legislature have 
 established new turnpikes, some nearly parallel with and divert¬ 
 ing travel to the injury and sometimes ruin of former ones. 
 There never has been brought before any judicial tribunal, a 
 question as to the constitutionality of these charters. But many 
 adjudications have been based upon their validity. 
 
126 
 
 There is no contract by the commonwealth, that no new 
 charter shall be granted, which shall interfere with the business 
 or profits of the old. And the legislature do not limit or re¬ 
 strict the power of their successors in establishing new corpora¬ 
 tions, wherever in their discretion they shall determine that the 
 public good requires them. 
 
 In some cases, charters have been granted for the erection of 
 bridges across rivers, over which none existed before. Does 
 this give an exclusive right to all the travel over such rivers ? 
 And would the grant of a charter for a new bridge, over the 
 same river, which should divert any travel, however small in 
 amount, violate the first contract ? It manifestly would not. 
 If then a slight diversion of travel would not contravene the 
 first charter, the exclusive right does not extend to the whole 
 travel which would have passed over the first bridge if no new 
 one had been erected. How near then must the new one be, 
 and how much of the travel must it divert, to become a nui¬ 
 sance ? It would, I believe, be difficult, if not impossible, to give 
 a definite answer to this question. 
 
 Does the charier of a bridge or turnpike give to it an exclu¬ 
 sive right to the line of travel which passed over it when first 
 constructed ? This is an indefinite and uncertain expression, and 
 the line of travel is every where very fluctuating. But if it has 
 any certain definition, it must mean the travel from all those 
 parts of the country from which it passed at the time of the 
 completion of the bridge or turnpike. A grant or covenant to this 
 extent would amount to a stipulation, that the channels of com¬ 
 munication and course of business, and in fact the state of society 
 and of the country itself, should remain stationary. A change 
 of the roads, the improving of an old, or the laying out of a 
 new one, at a great distance from a bridge or turnpike, might 
 affect the travel over it. The change of business or the open¬ 
 ing a new market at one extremity of the state, might diminish 
 the transportation over a bridge or road at the other. I think 
 therefore that the extent of the exclusive right granted is in no 
 case defined or limited by a reference to any particular line of 
 travel. 
 
 % 
 
127 
 
 If every turnpike and bridge charter contains a covenant or 
 stipulation that no new turnpike or other road or bridge shall be 
 made, which will divert the travel or diminish the profits of the 
 old one, then deplorable is the state of almost every incorpora¬ 
 tion of this kind in the commonwealth. They have been act¬ 
 ing and expending their money on the faith of void charters, and 
 all their acts have been unauthorized, and so far as they interfered 
 with the rights of others, were trespasses upon private property. 
 
 If the diversion of toll is inconsistent with an existing charter, 
 it cannot be justified by legislative authority. The act author¬ 
 izing it would impair the obligation of a contract, and be void 
 by the constitution of the United States. Although the legisla¬ 
 ture may appropriate private property, may take the whole fran¬ 
 chise of a corporation, when the public exigency requires it, by 
 indemnifying the owners ; yet a contract is deemed sacred, and 
 the constitution nowhere allows the violation of its obligations, 
 by any branch of government, for any exigency or upon making 
 compensation for the injury. The supreme law of the land ex¬ 
 pressly and peremptorily interdicts the legislatures of the sever¬ 
 al states from passing any law impairing the obligations of con¬ 
 tracts. Any legislative act, assuming the form of law, having this 
 effect, is a nullity and a blank upon the statute book. 
 
 If therefore the different private charters in the commonwealth 
 granted for the purpose of improving the state of the country 
 and bettering the condition of the people, are to receive the ex¬ 
 tensive construction contended for, they amount to an entire 
 prohibition of all further internal improvement during their 
 continuance. No improved road, no new bridge, no canal, no 
 rail-road can be constitutionally established. For I think, in the 
 present state of our country, no such improved channel of com¬ 
 munication can be opened without diminishing the profits of some 
 old corporation. 
 
 It is vain to say that the new corporations may proceed in their 
 enterprises of public utility, by paying to the old ones the dam¬ 
 ages which they sustain. I think I have shown that the diver¬ 
 sion of toll is a consequential damage, which cannot be justified 
 under the authority to take private property for public uses, and 
 that if it is inconsistent with the provisions of a former charter, it 
 
128 
 
 w 
 
 
 
 
 is void. If I have succeeded in establishing these Uvo proposi¬ 
 tions, which seem to me to be extremely clear; then it neces¬ 
 sarily follows, that such new corporations can exist only by the 
 consent of the old ones ; and may be restrained from proceeding 
 or declared to be legal nullities, whenever the old corporations 
 whose emoluments are diminished, shall choose to appeal to 
 the equity jurisdiction of this Court. 
 
 If, however, such be the necessary and true construction of 
 the charters granted by the legislature, fiat justitia ; let the pub¬ 
 lic faith be preserved inviolate ; let the contracts of the govern¬ 
 ment, according to their true import, be rigidly' enforced. But 
 if consequences so inconsistent with the improvement and pros¬ 
 perity of the state result from the liberal and extended construc¬ 
 tion of the charters which have been granted, we ought, if the 
 terms used will admit of it, rather to adopt a more limited and re¬ 
 stricted one, than to impute such improvidence to the legislature. 
 
 In the further examination of this subject, I am more fully 
 convinced of the correctness of the position which I advanced 
 in relation to the plaintiffs’ charter, viz. that it either gave them 
 the exclusive right to all the travel across Charles river below 
 the Cambridge bridge, in the state in which the channel of com¬ 
 munication between the metropolis and the surrounding country 
 then was, or only the right to take toll of such persons as, under 
 the changing and improving state of our country, should choose 
 to pass their bridge. 
 
 If one or the other of these constructions must be the true 
 one, then which shall we adopt ? If the former, then every new 
 bridge across the river, every turnpike and every common high¬ 
 way, which has diverted a traveller from the plaintiffs’ bridge, 
 has been an infringement of their chartered rights, and a viola¬ 
 tion of public faith. This construction would amount substan¬ 
 tially to a covenant, that during the plaintiffs’ charter an impor¬ 
 tant portion of our commonwealth, as to facilities for travel and 
 transportation, should remain in statu quo. I am on the whole 
 irresistibly brought to the conclusion, that this construction is 
 neither consonant with sound reason, with judicial authorities, 
 with the course of legislation, nor with the principles of our free 
 institutions. 
 
129 
 
 It only remains for me to adopt the latter construction of this 
 grant, and hold, that the plaintiffs’ right, by virtue of their com¬ 
 pact with the commonwealth, only extends to the taking of toll 
 of such persons as may pass their bridge, and that this com¬ 
 pact contains no covenant or agreement that they shall be en¬ 
 titled to a certain extent or particular line of travel. 
 
 This manifestly is the literal construction of the act and sat¬ 
 isfies all its words. 
 
 The words are, “ that a toll be and hereby is granted: ” 
 For whose benefit ? “ For the sole benefit of the proprietors.” 
 
 Of whom is it to be collected ? Of passengers or persons pass¬ 
 ing the bridge. The act contains no covenant or stipulation 
 as to the extent of travel, nor any limitation or restriction upon 
 subsequent legislatures in relation to other charters or grants. 
 
 I have now endeavoured to show, that the act incorporating 
 the proprietors of Charles river bridge contains no express grant 
 of an exclusive right beyond the limits of the bridge itself, nor 
 any covenant on the part of the commonwealth, that no new 
 bridge shall be erected which shall diminish the profits of the 
 old one. It only remains for me to consider, whether there is 
 any such grant or covenant by implication. 
 
 The general rule is, that in governmental grants nothing pass¬ 
 es by implication. Bac. Abr. Prerogative, F. 2 ; 17 Vin. Abr. 
 Prerogative, C. c; Planklty v. Winstanley, 3 T. R. 288 ; 
 The Case of the Royal Fishery of the Panne, Davies, 157; 
 Finch’s Law, 100; Legafs Case, 10 Co. 112; The Elsebe, 
 5 Rob. Adtn. Rep. 162. In England, where such grants em¬ 
 anate from the prerogative of the crown, this rule is well estab¬ 
 lished. “ A subject’s grant,” says Blackstone, (2 Coin. 248,) 
 “ shall be construed to include many things besides what are ex¬ 
 pressed, if necessary for the operation of the grant.” “ But 
 the king’s grant shall not enure to any other intent than that 
 which is precisely expressed in the grant.” If this is the rule 
 under a monarchical government and in grants of the king, by 
 much stronger reason ought it to prevail under a republican 
 government and in legislative grants. It is much more appli¬ 
 cable to agents of short continuance, than to hereditary officers. 
 The commonwealth is the grantor, the legislature is the agent, 
 17 
 
130 
 
 and the grant actually proceeds from the people in their collec¬ 
 tive sovereign capacity. Private charters are a limitation or 
 restriction of legislative power, and are binding not only upon 
 the legislators who make them, but upon their successors ever 
 after. It is a branch of legislation in which the immediate ac- 
 'tors, touching the subject acted upon, exhaust the whole power 
 which has been committed to the legislative department, and 
 thus leave their successors with less of sovereignty than they 
 themselves possessed. I apprehend, however, that in England, 
 and even in this country, the rule cannot be sustained in the 
 full extent in which it is laid down by Blackstone, but must 
 receive some qualification. But that public grants are to be 
 construed more strictly and less favorably to the grantee than 
 private ones, I believe will admit of no doubt. Blankley v. 
 fVinstanley, 3 T. R. 279 ; Boulton v. Bull, 2 H. Bl. 500. 
 
 Although exclusive rights for short periods sometimes encour¬ 
 age enterprises of public usefulness, yet generally their tenden¬ 
 cy is to impede the march of public improvement, and to inter¬ 
 rupt that fair and equal competition which it has ever been the 
 policy of our country to encourage. They are not, and never 
 have been, favourites with our government, and are not to be 
 presumed to have been granted farther than the express words 
 of the grant will warrant. 
 
 Although no distinct thing or right will pass by implication, 
 yet I do not mean to question that the words used should be 
 understood in their most natural and obvious sense, and that 
 whatever is essential to the enjoyment of the thing granted, will 
 be necessarily implied in the grant. Co. Lit. 56 a; Plowd. 
 317 ; Saunders's Case, 5 Co. 12. 
 
 The considerations which I have before offered for the pur¬ 
 pose of showing that the plaintiffs’ charter ought to receive a 
 strict and limited construction, tend, with equal, perhaps greater 
 force, to prove that it ought not to be extended by implication 
 so as to include the extensive exclusive rights claimed by the 
 plaintiffs. 
 
 The authority to build the bridge itself is granted by impli¬ 
 cation. But it is a necessary implication. Without it, the grant 
 itself would be an absurdity and a nullity. Not so with the rights 
 
131 
 
 claimed. The grant was of a franchise. This might be enjoyed 
 under the construction which I hold to be correct, as well as under 
 the more extensive one contended for by the plaintiffs. It is true 
 the franchise would be more valuable under the one construction 
 than the other. But the rule does not apply to the value. The 
 grantees cannot claim any additional privilege or immunity be¬ 
 cause it will increase the value of the thing granted, but only 
 where it is necessary to the enjoyment of it. 
 
 The case of the Portland Bank v. Apthorp, 12 Mass. R. 
 252, seems to me to be a strong illustration of the principle for 
 which I contend. The Portland bank had a charter for a lim¬ 
 ited term, containing the powers, duties and liabilities of the 
 corporation. During the continuance of the charter a tax of 
 one per cent, per annum on the capital stock was imposed on 
 all the banks in the state. The Portland bank resisted the pay¬ 
 ment of this tax, on the ground that the law imposing it was 
 inconsistent with their charter, and as to them, inoperative. 
 
 They must have contended, and doubtless did, that they 
 acted under a charter which was a contract with the common¬ 
 wealth ; that this contract did not require of them the payment 
 of such a tax, but by necessary implication exempted them 
 from all duties not specifically enumerated in the charter; 
 that they were bound to continue their corporation during the 
 period of its limitation ; that the tax was a heavy burden ; that 
 they might not have accepted their charter with such a burden ; 
 and that it was a violation of the spirit, if not the letter of their 
 contract, to compel them to perform duties which were not 
 contemplated when they accepted their charter, and from which 
 they could not relieve themselves by a surrender of it. 
 
 But these objections to the validity of the tax were overrul¬ 
 ed, and the Court held, that the charter contained no implied 
 exemption from a general tax, which might be imposed upon 
 any description of property of which they were owners. The 
 legislature did not impose upon themselves any restriction in 
 relation to the taxation of the property in the common¬ 
 wealth. And the stockholders accepted their charter with 
 a knowledge of the power of the legislature over these sub¬ 
 jects. 
 
132 
 
 In the case before us, the proprietors of Charles river bridge 
 must be presumed to have accepted their charter with an un¬ 
 derstanding that the legislature possessed the general authority 
 to make laws regulating the navigable waters, the mediums of 
 communication, and many other subjects which might increase 
 or diminish the value or profits of the franchise granted to them. 
 No restraint upon this authority can be raised by implication. 
 They must therefore have taken their charter subject to this 
 authority, and have relied upon the wisdom and justice of the 
 legislature, and not upon any provisions of their charter, to pro¬ 
 tect them from unjust and unreasonable competition. Whether 
 in this respect they have reason to complain, we have no right 
 to inquire or give an opinion. Our confidence in a co-ordinate 
 branch of the government forbids a presumption so inconsistent 
 with its dignity and the respect due to it. 
 
 That the plaintiffs’ rights cannot be extended by implication 
 beyond what is necessary to the enjoyment of the thing specifi¬ 
 cally granted, and that there is nothing in the case to favour the 
 doctrine of implied grants or covenants, I think manifest— 
 
 Because the grant was made by agents appointed for short 
 periods and with limited powers :— 
 
 Because the grant itself is a restriction upon the power of 
 subsequent legislatures :— 
 
 Because the extension of the grant is in derogation of the 
 rights and against the interests of the people :— 
 
 Because it tends to promote monopolies and exclusive privi¬ 
 leges, which ever ought to be guarded against and restrained :— 
 and 
 
 Because such constructions of existing grants would prove 
 an insuperable obstacle to future improvements. 
 
 I am therefore of opinion, that the plaintiffs’ charter does not 
 contain, expressly or impliedly, any such grant or covenant as 
 they contend for. 
 
 It may be urged against this construction of the plaintiffs’ 
 and other similar grants, that it will take from the grantees all 
 encouragement to commence hazardous and expensive enter¬ 
 prises for the public benefit. 
 
133 
 
 If 1 am asked what security they have that their reasonable 
 expectations of remuneration will not be destroyed by the es¬ 
 tablishment of rival institutions, I answer, that they have secu¬ 
 rity in the self-interest of individuals, who will never engage in 
 expensive works without a prospect of remuneration. Unless 
 it is believed that a new bridge or turnpike will be profitable to 
 the proprietors, it will never be made to the injury of the old 
 one. They have security in their confidence in the legislature; 
 that, in consulting the good of the whole, they will not sacrifice 
 or injure the property of one portion of the community for the 
 benefit of another. And they have still higher security in the 
 constitutional provision, that private properly shall not be taken 
 for public uses without a reasonable compensation. No new 
 bridge, turnpike or common highway can be expected to be 
 established without the taking of private property, and therefore 
 no such new channel of communication can be opened, except 
 where public convenience and necessity shall require it. If all 
 these are not sufficient encouragement to public improvements 
 and sufficient security against injurious or destructive competi¬ 
 tion, then I say that it was the fault of the grantees that they 
 did not make a more favourable bargain, or that they acceded 
 to an injurious compact. In all cases they may require an ex¬ 
 press grant of an exclusive right within certain limits, or a clear 
 stipulation that no rival institution shall be authorized- within a 
 certain distance. Such provisions are often inserted in charters 
 in neighbouring states, and there has been at least one instance 
 in this commonwealth. In 1792 the exclusive right, for a limit¬ 
 ed period, of making a canal between Connecticut river and 
 the metropolis, was granted to a number of individuals who were 
 incorporated. 
 
 Although the correct exposition of the contract now under 
 examination is very important to the parties to this suit and to 
 other corporations now in existence, yet it is of little import in 
 relation to the promotion of public enterprise, or in any respect 
 in relation to charters hereafter to be granted. When the con¬ 
 struction of this charter is settled, the parties to future ones will 
 take care to insert such express provisions and stipulations as 
 they shall deem promotive of the public good, and secure 
 against any unreasonable private competition. 
 
134 
 
 The duty which we are required to perform in the present 
 case, is the most difficult and important which can fall to the lot 
 of judicial officers. It is to revise, scrutinize and compare with 
 the constitution and decide upon the validity of an act of the 
 legislature of the commonwealth. For one branch of the gov¬ 
 ernment to re-examine the acts of a co-ordinate branch, and 
 determine upon their conformity to the constitution under which 
 both act, and to declare them valid or invalid according to its 
 opinion of such conformity, is a high, delicate and invidious 
 power ; one which will no more be exerted in doubtful, than it 
 will be omitted in clear cases. 
 
 The act under consideration, we are bound to presume, re¬ 
 ceived due deliberation from all branches of the legislature. 
 Of the expediency of passing it ; of its bearing upon the in¬ 
 terests of different individuals, corporations and sections of the 
 state ; of the public convenience and necessity which required 
 the seizure of private property, they are the exclusive judges. 
 And we have no more the inclination, than the means, of re-ex¬ 
 amining any of these questions. But upon its constitutionality 
 we are bound to decide. If it clearly contravenes any consti¬ 
 tutional provision, our duty is plain. The act is a nullity. Bat 
 if this point is doubtful, our reluctance to exert so high and 
 delicate a power, our respect for the legislature, and our con¬ 
 fidence in a co-ordinate department cf the government, would 
 require us to give validity to its acts. For myself, however, 
 I have no need in the present case to resort to this principle. 
 
 From the most thorough and deliberate examination which I 
 have been able to give to the present case, I am fully convinc¬ 
 ed, that the act under which the defendants erected their bridge 
 is not an infringement of the plaintiffs’ rights, and does not vio¬ 
 late any provision of the state or national constitution. I am 
 therefore of opinion, that the plaintiffs’ bill ought to be dismissed. 
 
 Wilde J. I concur in the opinion of my learned brother, 
 and am fully satisfied with the reasons given to support it. 
 This, however, being a case of great interest, not only to the 
 parties, but to the public also, I feel bound to go over the 
 grounds of discussion, and more at large than I should think 
 necessary or useful in a case of ordinary importance. 
 
135 
 
 I shall, however, pass over one branch of the case without 
 remark, namely, that which relates to the ancient title of 
 Harvard College ; because I am of opinion, that there has been 
 no legal or equitable transfer of this title to the plaintiffs. It is 
 admitted that there has been no legal assignment from the col¬ 
 lege, and it appears to me equally clear, that nothing has been 
 shown, that can amount to an assignment in equity. The plain¬ 
 tiffs contend, that by the payment of the annuity of 200/. to the 
 college, they became purchasers of the right to the ferry ; that 
 an agreement on the part of the college to assign, may be pre¬ 
 sumed ; and that in equity, an agreement to assign is equiva¬ 
 lent to an actual assignment. But I thipk the basis of this ar¬ 
 gument wholly fails, because I cannot perceive that the payment 
 of the annuity, under the circumstances of the case, has any 
 tendency to prove a purchase of the college right. This annu¬ 
 ity was paid in pursuance of an express provision in the plain¬ 
 tiffs’ act of incorporation. It was the price paid for their char¬ 
 ter; and which was to be reimbursed to them by the tolls. 
 The annuity therefore has been eventually paid by the public ; 
 and the case, in my opinion, stands on the same footing as it 
 would, provided the annuity had been made payable into the 
 public treasury, and the government had made compensation to 
 the college. If, therefore, there was a purchase of the college 
 rights, the government, and not the plaintiffs, must be regarded 
 as the purchasers. I cannot however view the transaction in 
 the light of a purchase ; the intention unquestionably was to ex¬ 
 tinguish the right of ferry, and to provide an equivalent; which 
 I think is apparent from the language of the plaintiffs’ act of in¬ 
 corporation. For the annuity to the college was not to cease 
 at the expiration of the plaintiffs’ charter ; but the bridge was 
 then 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 such bridge 
 been erected.” So that it is clear, I think, that the right of 
 ferry was intended to be extinguished, and in no event to be re¬ 
 vived. And it was accordingly extinguished by the acquies¬ 
 cence of the college. That it was so considered at the time by 
 the plaintiffs themselves, I can have little doubt; otherwise it 
 
136 
 
 would be difficult to account for their neglecting to require from 
 the college a transfer of their franchise. But however this may 
 be, I am clearly of opinion that the plaintiffs have derived 
 no right or title from the college. I consider then the plain¬ 
 tiffs’ rights, whatever they may be, as exclusively derived 
 from the grants of government under the acts of 1784, c. 53, 
 and of 1791, c. 62, and the case, in my opinion, altogether de¬ 
 pends on the true construction of these acts. 
 
 The rule of construction as to royal grants seems to be per¬ 
 fectly well settled, as laid down by Blackstone, 2 Com. 347. 
 When they are made at the suit of the grantee, they shall be 
 taken most beneficially for the king ; contrary to the grants of 
 common persons. Thus if the king grants lands to one and his 
 heirs male, this is merely void ; for it is not an estate tail, as 
 there are no words of procreation, &c. and it is not a fee sim¬ 
 ple, because it may reasonably be presumed that the king only 
 intended to give an estate tail. So if the king makes a grant of 
 lands and the mines therein contained, and royal mines are 
 found therein, they shall not pass. And so if the king grants 
 lands or a rent, and limits no particular estate in the gift, the 
 grant is void, and the patentee has not an estate for life, not 
 even an estate at will. 
 
 The reason given is, that in grants proceeding from the ap¬ 
 plication of the subject, the grantees ought to know what they 
 ask, and if that does not appear, nothing shall pass from the 
 king, by reason of the uncertainty. Bnc. Prerog. F. 2. 
 
 So also if the king grants the right to seize and bring in for 
 adjudication all ships of the enemy, yet this does not deprive 
 the king of the power afterwards to except certain ships or par¬ 
 ticular classes of the enemy’s ships. For it does not bind the 
 crown in its power of qualifying the right granted, by subsequent 
 modifications which the public good may require. For the 
 general presumption is, says Lord Stowell, that the government 
 does not mean to divest itself of this universal attribute of sove¬ 
 reignty, unless it is clearly and unequivocally expressed. And 
 again, Lord Stowell remarks, “ against an individual it is pre¬ 
 sumed, that he meant to convey a benefit with the utmost lib¬ 
 erality that his words will bear. It is indifferent to the public 
 
137 
 
 in which person an interest remains. With regard to the grant 
 of the sovereign it is far otherwise. It is not held by the sove¬ 
 reign himself as private property ; and no alienation shall be 
 presumed, except that which is clearly and indisputably ex¬ 
 pressed.” The Elsebe, 5 Rob. Adm. Rep. 1 63. 
 
 I am not aware of any good reason why the same general 
 rule of construction should not be applied to grants from the 
 legislature, especially when they relate to objects connected 
 with the public interest or convenience. I confess, however, 
 that I am not prepared to adopt all the English decisions on this 
 point; some of which (and particularly the case cited as re¬ 
 ported by Sir John Davies) appear to me to have pushed the 
 privilege of the royal prerogative to an extent inconsistent with 
 the principles of impartial justice. But in doubtful cases, it 
 seems to me a sound and wholesome rule of construction, to 
 interpret public grants most favourably to the public interest, 
 and that they are not to be enlarged by doubtful implications. 
 It is said that all the prerogatives of the crown must be for the 
 advantage and good of the people, otherwise they ought not 
 to be allowed by the law. Moore, 672. Whether this be the 
 correct theory of the British government or not, it is certain^that 
 under our form of government, every branch of the sovereign 
 power is to be exercised for the benefit, accommodation and hap¬ 
 piness of the people. When, therefore, the legislature makes a 
 grant of a public franchise, it is not to be extended by construc¬ 
 tion beyond its clear and obvious meaning; more especially 
 when the question of interpretation relates to exclusive privi¬ 
 leges, which all, more or less, tend to monopolies ; though some 
 are very properly allowed, for the encouragement of invention 
 and enterprise. If this rule of construction be not observed, 
 the hands of the legislature may be tied against their will, and 
 they may be injuriously restrained in the exercise of the impor¬ 
 tant power and duty of providing for the public welfare. 
 
 There are some legislative grants, no doubt, that may admit 
 a different rule of construction, such as grants of land on valua¬ 
 ble consideration and the like. It is said that when the king’s 
 grants are upon valuable consideration, they shall be construed 
 favourably for the patentee for the honour of the king. Bac. 
 
 18 
 
138 
 
 Prerog. F. 2. But to bring a grant within this exception to 
 the general rule of construction, the grantee must show a con¬ 
 sideration in some measure adequate, as well as valuable. 
 
 I proceed now to consider what, according to these estab¬ 
 lished principles, is the true construction of the act of 1784, 
 c. 53, and that of the additional act of 1791, c. 62. 
 
 It has been denied by the defendants’ counsel, that the latter 
 act or grant was accepted by the corporation ; but there was an 
 express acceptance before the expiration of the first grant; and 
 I see no reason why this acceptance was not in season. But 
 without that, the previous acts of the corporation are sufficient 
 to authorize the Court to presume an acceptance. Grants 
 beneficial to corporations may be presumed to be accepted, as 
 well as grants to individuals, and an express acceptance is not 
 necessary. Bank of United States v. Dandridge, 12 Wheat. 
 70. 
 
 To return then to the construction of these acts. In the pre¬ 
 amble of the first act it is recited, that the erecting of a bridge 
 over Charles river, in the place where the ferry between Bos¬ 
 ton and Charlestown was then kept, would be of great public 
 utility, and that Thomas Russell esquire and others had peti¬ 
 tioned the court for an act of incorporation to empower them to 
 build said bridge. In the enacting part of the act the petition¬ 
 ers are accordingly incorporated, and a toll is granted and es¬ 
 tablished for the purpose of reimbursing the corporation for the 
 expenses of building and supporting the bridge. This grant of 
 toll, taken in connexion with the preamble, without doubt au¬ 
 thorized the corporation to erect a bridge at the place desig¬ 
 nated. And this certainly is all that is expressly granted by the 
 act of incorporation. But the plaintiffs’ counsel contend, that 
 from the nature of the grant, there was an implied covenant on 
 the part of the government, that it would do nothing whereby 
 any of the travel over the plaintiffs’ bridge should be diverted ; 
 or at least, that it should not be done without compensation. I 
 cannot, how’ever, perceive any thing in the nature or language 
 of the grant, or in the existing circumstances at the time of the 
 grant, from which such a covenant can be implied. On the 
 contrary all that appears tends to repel such an implication. 
 
139 
 
 This claim of an exclusive right was first advanced by the 
 plaintiffs at the time when the proprietors of West Boston 
 bridge were incorporated, and was repelled by the committee 
 to whom the subject was referred ; and the report of the com¬ 
 mittee was sanctioned by the legislature. The additional grant 
 was then made to the plaintiffs, which was considered by the 
 legislature as a donation for the encouragement of enterprise; 
 and it is so expressed in the grant. It is clear, therefore, that 
 the legislature did not intend to grant the exclusive privilege 
 now claimed, and it is equally clear that this was known by the 
 plaintiffs. They were at liberty to accept or reject the grant 
 at their option, but when they accepted it, they must be consid¬ 
 ered as tacitly agreeing to the terms upon which it was offered. 
 If then there were any doubts as to the construction of the first 
 grant, which however I cannot perceive, there is none, as it 
 seems to me, in relation to the additional grant, upon which 
 alone the plaintiffs must rest their claim ; the first grant having 
 expired by its own limitation, before the erection of the bridge 
 complained of. The intention of the legislature in making this 
 latter grant is clear and manifest; and to imply a covenant on 
 their part in direct opposition to their declared intention, would 
 be to make rather than to expound a contract. 
 
 The next question to be considered is, whether there is, in 
 the grant to the defendants, any thing inconsistent with the prior 
 grants to the plaintiffs : or whether the proceedings of the de¬ 
 fendants, sanctioned as they are by the authority of the legisla¬ 
 ture, can be justified. 
 
 1. It is first objected, that this grant io the defendants is in¬ 
 consistent with the tenth article of the declaration of rights ; and 
 several cases have been cited in support of this objection. The 
 principal one is that of Gardner v. The Village of JYewburgh, 
 2 Johns. Ch. R. 162. In that case the defendants had diverted 
 the water of a stream flowing through and over the plaintiff’s 
 land, being authorized so to do by an act of the legislature, in 
 which there was no provision for compensation to the plaintiff, 
 and it was decided that the act, for that defect, was not binding. 
 But the grounds upon which that case was decided, wholly fail 
 in the case under consideration. The chancellor says, “ that a 
 
140 
 
 right to a stream of water is as sacred as a right to the soil over 
 which it flows. It is a part of the freehold, of which no man 
 can be disseised but by lawful judgment of his peers or by due 
 process of law.” And on this principle that case was decided ; 
 a principle upon which the present case certainly cannot be 
 maintained. For if the tolls taken by the defendants at their 
 bridge were a part of the plaintiffs’ freehold, then there is pro¬ 
 vision made in the defendants’ charter for compensation to the 
 plaintiffs, and they have no cause for complaint. But it cannot be 
 maintained, that these tolls w 7 ere ever a part of the plaintiffs’ 
 freehold, because it is clear, I think, that they never had any 
 vested property in them. They had a vested property in their 
 franchise, but not in the tolls, the fruits of their franchise, until 
 they were actually received. If any one should be forcibly 
 prevented from passing over the plaintiffs’ bridge, it would be 
 an injury for which an action on the case would lie, but not an 
 action of trespass for taking or destroying their property. It 
 would be like the case stated in the books, where one has a 
 market and a toll, and another is coming with goods to the mar¬ 
 ket, for which, if sold, toll would be due, and a third person 
 hinders him from coming to the market; an action will lie for 
 the lord of the market, on account of the possibility of damages. 
 So it is laid down, that the stopping of beasts on their way to a 
 market, to prevent their going there, is an act directly injurious 
 to the owner’s franchise ; but he had no property in the beasts. 
 It is said however, that if the stopping had not been eo intuitu , 
 no action would have lain. Tewkesbury v. Diston, 6 East, 457. 
 
 So in the present case, the plaintiffs had no vested property 
 in the tolls taken at the defendants’ bridge, and therefore whatever 
 damages the plaintiffs suffered by the diversion of travel from 
 their bridge, the damages were consequential; and it was clear¬ 
 ly settled in the cases of Thurston v. Hancock, 12 Mass. R. 
 220, and Callender v. Marsh, 1 Pick. 418, that consequential 
 damage to property was not within the 10th article of the dec¬ 
 laration of rights. In the latter case the plaintiff had sustained 
 heavy damages by the alteration of an adjoining street; his use 
 and enjoyment ol his house had thereby been greatly impaired ; 
 yet, though that was a hard case, the Court held that the dam- 
 
141 
 
 ages were consequential; and that such damages to property 
 did not amount to taking it, so as to entitle the owner to com¬ 
 pensation. The same principle is applicable to the present case. 
 The plaintiffs’ franchise has not been taken and appropriated to 
 public uses, though to a certain extent they have been deprived 
 of the beneficial use of it by the erection of the defendants’ 
 bridge. It is true a different doctrine is intimated in the case 
 of Chadwick v. The Proprietors of Haverhill Bridge , as re¬ 
 ported by Dane, Yol. 2, c. 67, art. 4, § 3. But this case was 
 not decided by the Court, but by referees, and it does not ap¬ 
 pear that any objection was made to their report. And besides, 
 provision was made in the defendants’ charter for compensation 
 to the owner of the ferry, so that the only questions in that case 
 were as to the amount of compensation, and by whom it should 
 be ascertained. 
 
 This objection therefore cannot be maintained on authority, 
 and certainly it seems to me it cannot on principle, unless tolls 
 and profits in expectancy can be considered as property within 
 the meaning of the constitution. If such a doctrine can be 
 maintained, then it must be admitted that the whole course of 
 legislation in this and other states has been erroneous. Not only 
 the acts authorizing the erection of West Boston bridge, the 
 Canal bridge, and the Western avenue, are unconstitutional and 
 void acts ; but the acts establishing the Newburyport turnpike, 
 and several other turnpikes, which divert travel from the plain¬ 
 tiffs’ bridge, are all violations of their constitutional rights. 
 
 If the diverting of travel from the plaintiffs’ bridge is taking 
 their property, for which they are entitled to compensation by 
 the constitution, then any change of roads or any other act, 
 which would divert a single traveller, would be unconstitutional, 
 except it was founded on the basis of compensation. If so, 
 there is not a turnpike road in this or in any other state, which 
 can be supported ; for in none of the acts of this description 
 has there been any provision for compensation for damages 
 arising from diverting the travel from existing roads. And it ap¬ 
 pears to me, that a trader or innholder has as good a right to be 
 protected in the enjoyment of the profits of his store or inn, as 
 the plaintiffs have to be protected in the enjoyment of their tolls. 
 
142 
 
 But these are all cases of consequential damages, for which the 
 law provides no compensation ; and the plaintiffs’ case cannot, 
 
 I think, be placed on any other or better footing. 
 
 The next question to be considered is, whether the grant to 
 the defendants is void, as being in contravention of the constitu¬ 
 tion of the United States. 
 
 This question depends altogether on the construction of the 
 plaintiffs’ grant, and I have already anticipated almost every re¬ 
 mark I proposed to make on this point. Without doubt the 
 grant to the plaintiffs was a valid contract; and if the construc¬ 
 tion given to it by the plaintiffs’ counsel is the true construction, 
 then I admit that the obligation of it is impaired by the defen¬ 
 dants’ grant. But for the reasons already given, 1 do not feel 
 at liberty to adopt this construction. For if I were rather in¬ 
 clined to think it correct, still, if it were a doubtful matter, I 
 should consider myself bound to reject it. Nothing but the 
 clearest conviction of my own mind would induce me to declare 
 the act of the legislature unconstitutional ; and although I do 
 not question the power of the Court to make such a declaration, 
 yet it never should be made but in cases which are clear and 
 manifest to all intelligent minds. The acts of the legislature 
 must be presumed to be constitutional, unless the contrary can 
 be made very clearly to appear. Now the construction contend¬ 
 ed for by the plaintiffs’ counsel is very far from being thus 
 clear ; on the contrary, I can find nothing in the case to support 
 it. I do not rest my opinion on this' point wholly on the rule, 
 that legislative grants or donations are to be construed favourably 
 for the public interest; for upon no rule of construction can the 
 covenant set up by the plaintiffs be implied. All grants are to 
 be construed according to the intention of the parties ; and the 
 intention in this case appears to me very clear. When the 
 plaintiffs first advanced their present claim, it was rejected by 
 the legislature. This claim was then founded on the first grant, 
 and it was then that the grant under which the plaintiffs now 
 claim was made. It was then known to the plaintiffs, that the 
 legislature did not intend to grant the exclusive privileges now 
 set up ; and they must be presumed to have accepted the grant 
 upon the terms offered. If these terms had not been satisfac- 
 
143 
 
 tory, they should have rejected the additional grant, and vindi¬ 
 cated their rights at that time. But they acquiesced, and after¬ 
 wards, when the legislature approached them much nearer by 
 the grant of the Canal bridge, they still acquiesced ; so that the 
 intention of the parties appears as clearly, as if it were ex¬ 
 pressly declared in the words of the grant. The construction 
 therefore now contended for is opposed to the understanding of 
 the parties at the time of the grant; and it is unreasonable, if 
 adopted without qualification, as being opposed also to the pub¬ 
 lic interest. For if the legislature were bound for seventy years, 
 so that they could not provide for the public accommodation, 
 without making compensation to the plaintiffs, the public might 
 materially suffer, and the grant would partake too much of the 
 nature of a monopoly. 
 
 Suppose the government, at the time of the grant, had a 
 large establishment in Charlestown, occasioning much travel be¬ 
 tween that place and the capital, could it not be discontinued 
 without compensation to the plaintiffs ? Or suppose some of 
 the roads leading to the plaintiffs’ bridge at the time of the 
 grant, could afterwards be turned in another direction, to the 
 great accommodation of the public travel (as they in fact have 
 been), could they not be so turned, or new roads opened, without 
 infringing the plaintiffs’ rights ? It seems to me extravagant to 
 hold that they could not; yet this is the necessary consequence 
 of the principle now contended for. And this restraint is to be 
 imposed on the legislature, not from any words in the grant 
 manifesting their intention thus to bind themselves, but expressly 
 against their declared intention at the lime of the grant. Now 
 the reverse of this, I think, is implied in the terms of the grant; 
 the public accommodation was the declared object of the grant; 
 it may therefore be implied very fairly, that the public were at 
 all events to be accommodated ; and if, from the increase of 
 population or business, additional accommodation should become 
 necessary, it was to be supplied. 
 
 This rule of construction is fully supported by the cases of 
 Prince v. Lewis , 5 Barnw. & Cresw. 363, and of Mosley v. 
 Walker, 7 Barnw. & Cresw. 54. In the former case the 
 plaintiff had a grant of a market for the sale of fruits, vegeta- 
 
144 
 
 bles, &c. within specified limits, and the complaint was, that the 
 defendant had sold fruits &,c. in the neighbourhood of the market. 
 The plaintiff recovered a verdict, but the court held, that the 
 action would not lie, it appearing that there was not sufficient 
 accommodation for the public in the market, a part of the space 
 having been diverted to other purposes. In the case of Mos¬ 
 ley v. Walker, Bayley J. says, “ I take it to be implied in the 
 terms in which a market is granted, that the grantee, if he con¬ 
 fine it to particular parts of the town, shall fix it in such parts 
 as will yield to the public reasonable accommodation ; in order 
 that the market, which was originally granted for the benefit of 
 the public, as well as for the benefit of the grantee, may be 
 effectually held.” 
 
 It was upon this principle that the legislature proceeded, in 
 authorizing the erection of the defendants’ bridge, having deci¬ 
 ded, upon a full hearing of all parties interested, that public 
 necessity and convenience required the additional accommoda¬ 
 tion prayed for; and on this point their decision is conclusive. 
 
 It is true, the plaintiffs offered to provide the most ample ac¬ 
 commodation, by constructing a circular draw, and a spur 
 bridge on the Boston side of the river, to facilitate travel to and 
 from the westerly part of Boston, and even to erect a new 
 bridge. But however reasonable this offer appears to be, (and 
 I confess that to me it appears exceedingly reasonable,) yet I 
 take it the legislature were the exclusive judges on this point 
 also. They were not compellable to enter into a new contract, 
 or to enlarge or modify their former grant. They were to de¬ 
 termine whether the public were or were not sufficiently ac¬ 
 commodated ; and if they were not, in what manner, and by 
 whom, the additional accommodation should be supplied. The 
 Court have no right to inquire into these matters, and we can¬ 
 not know judicially to what extent the public were incommoded, 
 and how pressing was the necessity for a new bridge ; so that 
 unless we determine that no inconvenience, however great, 
 would authorize the legislature to interpose as they did, we 
 cannot impeach their grant to the defendants as an unconstitu¬ 
 tional act. 
 
145 
 
 The view I have thus taken of this part of the case does 
 not appear to me inconsistent with the current of the authorities 
 cited by the plaintiffs’ counsel in support of their exclusive claims. 
 Most of the cases relate to ancient rights to ferries and markets, 
 founded on titles by prescription. Now when a party can 
 show that he has claimed and enjoyed an exclusive privilege 
 from time'limmemorial, a grant in his favour will be presumed 
 co-extensive with the enjoyment. These cases therefore will 
 furnish no rule of construction as to actual grants, which are to 
 be interpreted according to the terms of them. But even in 
 some of the cases founded on prescriptive titles, the parties were 
 not allowed unlimited exclusive privileges, although they had 
 been enjoyed from time immemorial. They were restrained in 
 favour of the public interest and convenience. In the case 
 cited from Hardres, a new ferry was set up at the distance of 
 three quarters of a mile from an ancient ferry, and it was held 
 that it was no injury to the lawful rights of the owner of the 
 ancient ferry. In the case of Tripp v. Frank , 4 T. R. 666, 
 the plaintiff proved a title by prescription to a ferry from Kings¬ 
 ton upon Hull to Barton, and that the defendants had at different 
 times carried over persons from Kingston upon Hull to Barrow, 
 two miles below Barton. A verdict was returned for the plain¬ 
 tiff, but the court held that the action could not be maintained ; 
 yet it is obvious that the plaintiff had suffered by the diminu¬ 
 tion of his tolls ; but it was damnum absque injuria. The court 
 remark, “ that it is absurd to say that no person shall be permit¬ 
 ted to go to another place on the Humber than that to which 
 the plaintiff chooses to carry him.” 
 
 The decisions in these cases and in the cases of Prince v. 
 Lewis, and Mosley v. Walker, before referred to, are, in my 
 opinion, fully supported by well established principles, and are 
 strongly opposed to the whole doctrine on which the plaintiffs 
 rest their case. 
 
 Upon the whole, I am of opinion that the grant to the de¬ 
 fendants is a valid grant, and that the acts and proceedings 
 under it are no infringements of the plaintiffs’ rights ; it having 
 been decided by competent authority, that the erection of a 
 new bridge was required by public convenience and necessity. 
 
 19 
 
146 
 
 lam aware of the hardship of the case in relation to some of 
 the plaintiffs ; and I am, I trust, fully sensible of the importance 
 of preserving public faith, and protecting private property ; but 
 the public interest, accommodation and convenience, are like¬ 
 wise to be guarded; and we must respect the constitutional 
 rights and powers of the legislature, preserving also a reasonable 
 confidence in their wisdom and integrity. Their doings are not 
 to be set aside, unless it can be made clearly to appear that they 
 have exceeded their constitutional powers. 
 
 For these reasons I am of opinion that the plaintiffs are not 
 entitled to the relief prayed for, and that the bill should be dis¬ 
 missed. 
 
 Putnam J. It is admitted that the act of March 9, 1785, 
 (St. 1784, c. 53,) granting to Thomas Russell and others a 
 right to build a bridge over Charles river, and to have the toll 
 for forty years, and the act of March 9, 1792, (St. 1791, 
 c. 62,) extending the term for taking toll to seventy years, are 
 to be considered as contracts, within the meaning of the consti¬ 
 tution of the United States. 
 
 The act for the incorporation of the proprietors of the War¬ 
 ren bridge, (St. 1 827, c. 127,) was passed on the 12th of March 
 1828. 
 
 The general questions for consideration are, whether the last 
 act impaired the contracts first mentioned, and so was contrary 
 to the constitution of the United States: and whether it was an 
 appropriation of private property for public uses against the con¬ 
 sent of the owners and without compensation, and so was con¬ 
 trary to the constitution of Massachusetts. 
 
 I think that both questions should be determined in the affir¬ 
 mative. 
 
 I propose to maintain, 1. That the President and Fellows of 
 Harvard College, on the 9th of March 1785, w^ere seised in fee 
 of the franchise of the ferry between Charlestown and Boston, 
 under the grants of the colonial government. 
 
 2. That the college, for valuable consideration paid by Mr. 
 Russell and his associates, consented that they should have the 
 ferry during the continuance of their charter. 
 
147 
 
 3. That no other ferry could be lawfully erected by the state, 
 or by individuals, so near to the old ferry as to impair its profits 
 or draw away its custom. 
 
 4. That the plaintiffs, having acquired the right of the col¬ 
 lege as above mentioned, did, in virtue of the charter granted 
 to them by the legislature, become seised of an exclusive fran¬ 
 chise, which was as extensive as the owners of the ferry had 
 enjoyed, for the transportation over Charles river, between Bos¬ 
 ton and Charlestown, over their bridge ; so that a new ferry or 
 bridge, which would have been a nuisance to the old ferry, - 
 would also be a nuisance to the old bridge. 
 
 5. That if the charter to the plaintiffs, to erect a toll-bridge, 
 is to be construed without reference to the ferry, it would be a 
 grant of an exclusive privilege or right to have toll for transpor¬ 
 tation, as extensive as if it had been a grant of a ferry : and 
 also, that it contained an implied covenant or engagement on 
 the'part of the state, not to grant another bridge so near as to 
 draw away the toll from the old one. 
 
 6. 1 shall consider the operation of the new bridge upon the 
 old one, and draw the consequences which 1 think the constitu¬ 
 tion requires, upon the whole matter. 
 
 I extend to the legislature all the respect which should be 
 required from [a member of the judicial department. Their 
 acts are"presumed to have proceeded from good motives, and a 
 sense of duty imposed by the constitution and the laws. But 
 in speaking of an act which I disapprove, I cannot use words 
 of commendation. I desire it to be understood however, that 
 the opinion I am now to pronounce, is formed with all proper 
 deference for a co-ordinate department of the government. 
 
 1. In the first place I am to show that the college owned the 
 ferry. 
 
 It appears that in 1640 the general court granted the ferry 
 between Boston and Charlestown to the college. It was object¬ 
 ed that this grant was made before the college was incorpora¬ 
 ted, and so was void for the want of a party legally authorized 
 to take and hold as a grantee. If that were so, it would not di¬ 
 minish theffiberal intention of the grantor or donor, and would 
 aid in the construction of the subsequent grants to that deserv- 
 
148 
 
 edly favoured institution. It was incorporated in 1650. And in 
 that year the general court ordered, that the president, in behalf 
 and behoof of the college, might dispose of the Charlestown fer¬ 
 ry by lease or otherwise, making the best and most advantage 
 thereof to his own content. In the same ordinance the ferry- 
 rent is spoken of as belonging to the college. Four years after¬ 
 wards the general court speak of “the profit of the ferry, for¬ 
 merly granted to the college, which shall be continued .” and 
 in 9 Anne, when a complaint was made of neglect of due atten¬ 
 dance at the ferry, an act passed, reciting, “ that the treasurer 
 of the college had attended,” and that “ the profits and reve¬ 
 nues of the ferry had been granted to Harvard College in Cam¬ 
 bridge,” and “ they had seen the lease made by him of the fer¬ 
 ry for several years yet to come.” In this connexion, consider¬ 
 ing that the state had for one hundred and forty-five years per¬ 
 mitted the college, under these grants, original and confirmatory, 
 to take the profits for their own use, it cannot (as it seems to 
 me) be doubted, that the college was seised of the franchise as 
 of fee when the act of 1784 was passed. 
 
 It was contended however, that notwithstanding the grant of 
 1640, the general court, in 1644, exempted the magistrates from 
 the payment of ferriage, which would be an act implying a right 
 to the franchise itself. But the exception in the ordinance car¬ 
 ries an answer to the argument. The magistrates were not to 
 pay, 11 except at such ferries as were appropriated to any or rent¬ 
 ed out, and were out of the country’s hands.” In such cases 
 the country (or general court) were to pay for them. That was 
 exactly the case in regard to Charlestown ferry. It was appro¬ 
 priated to the use of the college ; it was out of the country’s 
 hands, and in the hands of the college. The magistrates were 
 to pass without paying the ferriage themselves, but the govern¬ 
 ment were to pay it for them. 
 
 Upon this part of the case it seems to me very clear, that the 
 state had made a permanent grant of the franchise to the college 
 for the furtherance of good learning. It was a wise and munifi¬ 
 cent exercise of their power. The grants were accepted, and 
 the duties which they imposed were performed by the college. 
 
 2. The college, for valuable consideration paid by Mr. Rus- 
 
149 
 
 ✓ 
 
 sell and his associates, consented that they should have the ferry 
 during the continuance of their charter. 
 
 This fact is proved by circumstances which could not have ta¬ 
 ken place, unless such consent had been given. The plaintiffs 
 built their bridge over the ferry-ways, and ever since they have 
 continued to pay to the college 200 l. a year for their right. 
 The college discontinued their boats, and the plaintiffs have taken 
 the toll for transportation. The college have received the annui¬ 
 ty, in lieu of the tolls which they had before received for their 
 own use for nearly a century and an half. Surely the college 
 could not maintain an action against the proprietors of Charles 
 river bridge for a disturbance of their ferry, because the jury 
 would be bound, from these facts, to find that they had consent¬ 
 ed that the plaintiffs should have it during their charter. 2 Wms. 
 Saund. 175 b. The assent of the college, whether it be in the 
 nature of a grant, discontinuance, surrender, lease or license to 
 use the franchise of the ferry, should be construed to enure in 
 the most beneficial manner for the plaintiffs, who paid a valuable 
 consideration for it. The legislature recognise the agreement in 
 the charter to the plaintiffs. The plaintiffs were grantees, or, at 
 least, licensees of the college. 
 
 3. I now propose to show, that no other ferry could be law¬ 
 fully erected by the state, or by individuals, so near to the old 
 ferry, as to draw away its custom. 
 
 This involves the consideration of the rights which belong to a 
 ferry. How far on each side does the franchise extend ? 
 
 On the part of the defendants it is contended, that the right is 
 confined to the ferry-ways on each side. And we are referred 
 to Sav. 14, for the authority to support that position. It is said, 
 that a ferry is in respect of the landing-place, and not of the wa¬ 
 ter ; the water may be in one, the ferry in another, and in every 
 ferry the land on both sides of the water ought to be in the owner 
 of the ferry ; otherwise he cannot land on the other part. 13 
 Vin. 208, tit. Ferry , Ipswich v. Brown. The last sentence is 
 explanatory of the case. The matter under consideration w*as 
 not how far on each side the franchise extended ; the point of 
 the decision was, that there must be a right of landing necessari¬ 
 ly included in the franchise, or it would not come within the de- 
 
150 
 
 scription of a ferry. In Com. Dig. Piscary, B, the case is stat¬ 
 ed thus :— “ He who has the privilege of a ferry, ought to have 
 the soil on both sides of the water, for he cannot land upon the 
 soil of another without his assent.” Now that seems to be an 
 obvious truth. There must be a right of landing. It is not neces¬ 
 sary however that the owner of a ferry should have a fee simple 
 in the soil. A permission or license of the owner to land would be 
 sufficient. The King v. JVicholson, 12 East, 333.* But there 
 is no legal ground to maintain that the extent of the franchise is 
 to be limited to the ferry-ways. 
 
 The law was clearly held otherwise in England for centuries 
 before the settlement of this country. It was brought hither by 
 our fathers, and has been recognised by the eminent jurists of 
 our own country. I deem it important to demonstrate this part 
 of the case, and shall therefore make free citations from the 
 books to prove it. 
 
 It is said by Paston J. in 22 H. 6, 1 4, pi. 23, that “ if I have 
 an ancient ferry in a ville, and another sets up another ferry 
 upon the same river near to my ferry, so that the profits of my 
 ferry are impaired, I shall have an action of the case against 
 him.” And the reason is given by JVewton—“ for you are 
 bound to sustain the ferry, and serve and repair it for the use 
 of the people, under penalty of grievous amercement.” S. C. 
 16 Yin. 30, tit. JVusance, H. pi. 25 •, S. C. 2 Roll. Abr. 140, 
 tit. JVusance, pi. 4 ; where the second ferry is called a nui¬ 
 sance to the first. 
 
 Bac. Prerogative, F, 1 . “ If the king grants a fair or mar¬ 
 
 ket to one person and afterwards grants another to another per¬ 
 son to the prejudice of the first, the second grant is void.” The 
 king will permit the party aggrieved, as a matter of right, to use 
 
 * Since this opinion was delivered, I have seen the case of Peter v. 
 Kendall et al. 6 Barnvv. &. Cresw. 703, where there was a demise of a fer¬ 
 ry by parol, at an annual rent, and afterward an agreement by parol, that 
 the tenant should become servant to the lessor and should account 
 for the tolls ; and it was held, that there was a surrender of the tenant’s 
 interest by operation of law. And the doctrine that the owner of the 
 ferry must own the soil on each side, is expressly denied. The court 
 held it sufficient if he had a right to use the land for the purposes of a 
 ferry. 
 
151 
 
 his name for the repeal of the second grant, which was prejudicial 
 to the first. Sir Oliver Butler's Case, 2 Ventr. 344 •, S. C. 3 Lev. 
 221 ; Brewster v. Weld, 6 Mod. 229. Same law in 3 Bl. Com. 
 218. That distinguished commentator expresses himself thus ; 
 —“ If a ferry is erected on a river, so near to another ancient 
 ferry as to draw away its custom, it is a nuisance to the own¬ 
 er of the old one.” Same law, Fitzh. N. B. 184, note a ; Bull. 
 N. P. 76 ; S'. P. Lord Hale’s Treatise, De Portibus Maris, 
 c. 5, p. 59. 
 
 Blissett v. Hart, Willes, 512, was an action of the case by 
 the owner of an ancient ferry, against one who had set up an¬ 
 other near. It is there laid down, that the owner may have his 
 remedy for the injury by an assise of nuisance, or an action 
 upon the case. It is a franchise which cannot be erected with¬ 
 out license from the crown, and when one is erected, another 
 cannot be erected without a writ of ad quod damnum. 
 
 16 Vin. 26, tit. JYusance, G, pi. 2. But if such grant should 
 be made without that clause, and it should be found to the dam¬ 
 age of the king or of the subject, it shall be avoided. 
 
 We have no process of ad quod damnum, but it is believed 
 that the constitutional provisions and the principles of the com¬ 
 mon law, afford protection to the property of the people here, 
 equivalent to that which is given by the writ of ad quod dam¬ 
 num in England. 
 
 A ferry, says Mr. Dane, vol. 2, p. 683, “ forms a part of a 
 public passage or highway, wherever rivers or waters are to be 
 passed in boats. They therefore, who have a ferry, must be 
 bound in a proper manner to keep it up ; to have suitable ferry- 
 ways, boats and attendants, at all seasonable times. The natu¬ 
 ral consequence of this duly, enjoined by law, is, that the 
 keepers of the ferry must have a reasonable compensation for 
 their time and expenses, fixed by law, and legally secured to 
 them. In this way, a ferry becomes property, an incorporeal 
 hereditament, the owners of which, for the public convenience, 
 being obliged by law to perform certain public services, must, 
 as a reasonable equivalent, be protected in this property.” 
 
 The owner may prove his title by grant, or by prescription, 
 which supposes such a grant to be made. 
 
152 
 
 The case of Chadwick v. Proprietors of Haverhill Bridge 
 was settled upon these principles. It was decided in this Court 
 in 1798. 2 Dane, 680. The plaintiff declared in an action 
 upon the case against the defendants, for destroying his ferry 
 by the building of a bridge near to and within forty rods of his 
 ferry. The defendants justified under an act of the legislature 
 authorizing them to build the bridge ; and this Court was of 
 opinion, “ that the act did not, and perhaps could not, deprive 
 the plaintiff of his common law right to try his title and dama¬ 
 ges by a jury in a civil action. How could the Court have oth¬ 
 erwise determined, without disregarding the provisions of the 
 constitution, which declares that the trial by jury shall be held 
 sacred ? 
 
 I have examined the record and papers in that case. The 
 declaration was drawn by Parsons. The original remains on 
 file in his hand-writing. I mention this circumstance to show 
 that it was a case which received his particular attention. It 
 states, “ that the plaintiff, on the 1st of August 1794, and long 
 before, was and ever since has been, and now is seised in his 
 own demesne as of fee and right, of and in a certain ferry 
 over Merriinac river, known by the name of Chadwick’s 
 Ferry, for the transportation in boats, of persons, carriages and 
 beasts from Bradford to Haverhill, and from Haverhill to Brad¬ 
 ford, with a right to receive toll for the said transportation ; yet 
 the proprietors, not ignorant, &c. but intending to injure the 
 said Chadwick in the enjoyment of his said franchise and 
 deprive him of the toll and profits accruing therefrom, on the 
 1st of August aforesaid, erected a bridge over the said river, 
 near to and within forty rods of the said Chadwick’s ferry 
 aforesaid, extending from Bradford to Haverhill, from the 
 banks of said river in Bradford aforesaid, and over the said 
 river to the banks thereof in Haverhill, for the passage of any 
 persons, their carriages and beasts from Bradford to Haverhill, 
 and from Haverhill to Bradford, for a toll to be paid to the 
 said proprietors for such passage, and the said bridge have kept 
 up from that time to the present time, and during the same 
 time have permitted sundry persons, with their carriages and 
 beasts, to pass the same bridge, and have received divers sums 
 
153 
 
 of money as toll therefor, to the great prejudice and detri¬ 
 ment of the said Chadwick, and the said Chadwick hath there¬ 
 by lost, during the time aforesaid, all toll and profit arising from 
 his said ferry.” 
 
 The plaintiff in that case proved a prescriptive right to the 
 ferry. The depositions are on file. In June term 1797 the 
 action was referred specially. Mr. Dane (the venerable author 
 of the Abridgment of American Law, who was then in full 
 practice at the Essex bar) was the chairman of the referees. 
 The rule was drawn up by Sullivan (who was attorney general 
 and of counsel for the proprietors), and amended by Parsons, 
 and signed by both, giving the referees authority to find a sum in 
 gross for the damages, if they should find that the plaintiff had 
 a right to recover. The award, dated November 14, 1798, is 
 in the hand-writing of Mr. Dane, in which the referees say that 
 they, “ having found that the said Chadwick had a right to re¬ 
 cover damages, do report that he recover 1110 dollars, being 
 a sum in gross,” &c. Chief Justice Francis Dana was present 
 with the whole court, when the report was accepted. His as¬ 
 sociates were Paine, Bradbury, Cushing and Dawes. 
 
 The act of incorporation of the proprietors of Haverhill 
 bridge, passed March 22, 1793, (Special Laws, vol. 1 , p. 437,) 
 provided that within one year after the bridge should be open¬ 
 ed for passengers, the proprietors should pay Samuel Chadwick 
 such sum or sums of money as should be awarded to him by 
 three indifferent men mutually chosen by the parties, as a 
 full compensation for any injury sustained by him by the erect¬ 
 ing said bridge ; and in case of the refusal of either of the 
 parties to appoint such referees, the judges of the Court of 
 Common Pleas for the county of Essex should ascertain and 
 adjudge said compensation, after due notice to all concerned. 
 But Chadwick did not choose to abide by that mode of com¬ 
 pensation, and commenced his action at law; and the Court 
 held, that the act of the legislature did not take away his right 
 to a trial by jury. 
 
 I consider this to be a case of great importance, not¬ 
 withstanding the judgment was rendered upon a report of 
 referees. It came under the consideration of a court very 
 20 
 
154 
 
 learned, especially in the common law. The most eminent 
 counsel were engaged on each side. The defendants were a 
 powerful corporation, claiming, but finding no shelter, under an 
 aet of the legislature, which had taken the property of the plain¬ 
 tiff for public uses, without providing for him a constitutional 
 trial by jury. I do not question the right of parties to submit 
 the law as well as the fact to arbitrators, who, being judges 
 of the paities’ own choosing, have power to decide definitively. 
 But this W3S no ordinary case or arbitration. It must have 
 been broken before the Court, or they would not have express¬ 
 ed the opinion which they did. It may not, under the circum¬ 
 stances, be considered as binding upon the Court. But if it 
 is considered merely as the award of the American Coke, upon 
 a question of legal right, it is to be treated with great respect. 
 Mr. Dane (ubi sup.), says that they reported for the plaintiff, 
 on the ground that he had such a right in the ferry as he had 
 declared for. 
 
 I hold it upon the authorities of the law to be clear, that the 
 franchise of a ferry is not confined to the ferry-ways, but that 
 it has an exclusive right of transportation of such extent on 
 each side, as to prevent near and injurious competition. If, 
 therefore, the Charlestown ferry had been continued, and the 
 owners of it had sued the proprietors of Warren bridge, the 
 case would be like the case of Chadwick v. Proprietors of 
 Haverhill Bridge, with this exception, that Chadwick’s ferry 
 was not so near to Haverhill bridge, as the Warren bridge is to 
 the Charlestown ferry-ways. If a new ferry had been set up 
 where the Warren bridge is, it would in legal contemplation be 
 clearly a nuisance to the old ferry. 
 
 4. I proceed to show that the plaintiffs, having acquired the 
 rights of the college as aforesaid, did, in virtue of the charter 
 made to them, become seised of a franchise to have the toll 
 for transportation over their bridge, as extensive as the college 
 had enjoyed for the transportation in boats. 
 
 This contract must be construed according to the intent of 
 the parties, “ as it may be inferred from the whole expressions 
 and the nature of the occasion to which it is applied.” 1 
 Evans’s Poth. 59, in notis. 
 
155 
 
 The act or contract is very inartificially drawn. It contains 
 no express enacting clause authorizing Mr. Russell and his as¬ 
 sociates to build the bridge, and their right to do so is to be in¬ 
 ferred only by implication. And if the doctrine is correct, that 
 nothing is to be taken by implication in the grants of the state, 
 as it has been said in regard to the grants of the king, the pro¬ 
 prietors could not defend themselves against an indictment for 
 nuisance. 
 
 Thus in a case cited by the defendants from Davies 157, 
 it was agreed, that where the king granted to Sir Randall 
 M‘Donell all the territory adjoining to the river Banne, and all 
 fisheries within that territory, “ exceptis tribus partibus piscarice 
 de Banne,” that the fourth part of this fishery should not pass 
 by the grant; for (say the court) “ the king's grant shall pass 
 nothing by implication .” 
 
 My brethren, 1 believe, are not prepared to adopt that posi¬ 
 tion. It must follow from the rejection of it, that the king’s 
 grants, or grants of the state, are to be construed with all such 
 implications as are necessary to carry their manifest intent into 
 effect. 
 
 I hold, that even in the construction of the king’s grant, the 
 rule, id cerium est quod cerium reddi potest, applies as much as 
 it does in the grants of individuals. And that where the king 
 grants for a valuable consideration, it is to be construed more 
 favourably for the patentee, than for the king. I suppose it will 
 not be contended that the grants of the legislature are to be 
 construed more favourably for the grantor, than the grants of 
 the king would be. 
 
 In The Lord Chandos's Case, 6 Co. 55, it was held, that 
 although the king hath mistaken the law or the fact, in case the 
 same were no part of the consideration, the grant shall not be 
 avoided, because the party was in no fault. By a grant of the 
 manor, without a word of the reversion, the reversion shall 
 pass, although the king grants it as in possession. 
 
 Again, in Whistler's Case, 10 Co. 65; “ such construction 
 as will make the true intention of the king expressed in his 
 charter take effect, is for the king’s honour, and stands with the 
 rules of law.” 
 
156 
 
 17 Vin. ] 53, tit. Prerogative, O. c, pi. 1 . If two construc¬ 
 tions be made, one to make the grant void, and the other good, 
 then for the honour of the king and the benefit of the subject, 
 such construction shall be made that the grant shall be good. 
 
 Again, in JVlolyn’s Case, 6 Co. 6, the rule is mentioned, “ to 
 construe the king’s grant beneficially for his honour and the re¬ 
 lief of the subject, and not to make any strict or literal con¬ 
 struction in subversion of such grants.” 
 
 Vin. (ubi sup.) pi. 4, referring to 2 Inst. 496. The king's 
 patents for liberties, lands, &fc. shall have no strict or narrow 
 interpretation for the overthrowing of them, but secundum ea- 
 rundem plenitudinem judicentur, viz. to have a liberal and 
 favourable construction for the making of them available in law, 
 usque ad plenitudinem, for the honour of the king, viz. as fully 
 and beneficially as the law was taken at the time when they were 
 made. 
 
 The parliament of England, sensible of the great oppression 
 which would fall upon the subjects, by a narrow construction of 
 the grants of the sovereign, in the time of Queen Elizabeth 
 (43 Eliz. 1 ,) enacted, “ that letters patents of all grants made 
 by the queen, should be expounded most beneficially for the pa¬ 
 tentees, any mis-naming, mis-recital, or non-recital notwithstand¬ 
 ing.” 
 
 Vin. (ubi sup.) pi. 13. “ The construction made on grants 
 
 of the crown is, that where the intention is plain, the words 
 are taken most favourably for the subject.” 
 
 Com. Dig. Grant, G, 5. “If the king’s grant refers to an¬ 
 other thing which is certain, it is sufficient; for id certum est, 
 &lc. though the reference be to a matter in pais." 
 
 In Plowd. 13. “If the king grants all such lands as came 
 to him by attainder, this grant comprehends no certainty; yet 
 it was held good, because by circumstances it may be reduced to 
 a certainty." And it is said that the “ same law is in cases of 
 common persons.” So in p. 12. “ If the king grants over 
 
 certain lands which came to his hands before, and further grants 
 to the grantee such liberties, privileges, Sic. as he had who was 
 last seised of the lands, where the king knows not the certainty 
 of the liberties and privileges, yet this grant is good enough, 
 
157 
 
 and the patentee may inquire what liberties and privileges the 
 other had before, and the same he shall use and enjoy, and yet 
 they were not certainly expressed, but were incertain at the 
 time of the grant: But for as much as this incertainty may be 
 reduced to a certainty by inquiry, or other circumstances, the 
 grant is good.” 
 
 Bac. Abr. Prerog. F, 2. “ If the king’s grant may be taken 
 to two intents, one of which may be good and the other not, 
 it shall be construed to such intent that the grant may take 
 effect.” 
 
 Bac. Prerog. F, 2. “ When the king’s grants are upon a 
 
 valuable consideration, they shall be construed favourably for the 
 patentee for the honour of the king.” 
 
 17 Vin. 152, Prerog. M c, pi. 11. The service done to 
 the realm is as good a consideration as if 500Z. had been given 
 for the land. Per the Lord Chancellor. 
 
 I will now proceed to inquire as to the facts and circumstan¬ 
 ces which attended the making of the grant or act of 1784. 
 
 The only communication with Boston was by the Charles¬ 
 town and the Winnesimmet ferries, excepting the communication 
 by Roxbury. Mr. Russell and his associates, in their petition 
 to the legislature, explain their expectations if their petition 
 should be granted. After speaking of the inconveniences of 
 the transportation in boats, they say, that it had long been the 
 wish of many to see a bridge erected across Charles river, in 
 the place where the ferry between Boston and Charlestown was 
 then kept. They take into consideration the great advantage 
 which will arise, not only to the towns of Boston and Charles¬ 
 town, but to all the country “ to the westward, northward, and 
 eastward, by the accomplishment of so desirable an object.” 
 And they were willing, if suitable encouragement should be 
 given to them, to undertake the work at their own cost and 
 charge, though the expense would be great. In other words, 
 they propose to accommodate all who come from the west, from 
 the north and from the east, with a bridge, being satisfied that 
 the toll which such a travel would pay, would indemnify them 
 for the hazard and expense. They expressly refer to the ferry, 
 and propose to put their bridge in its place, for the public ac- 
 
158 
 
 commodation, as well as for their own emolument. The legis¬ 
 lature granted their petition. The act is an echo of it. It is 
 entitled, “ An act for incorporating certain persons for the pur¬ 
 pose of building a bridge over Charles river, between Boston 
 and Charlestown, and supporting the same during the term of 
 forty years.” Then they recite, that whereas the erecting of a 
 bridge over Charles river, in the place where th e ferry was then 
 kept, &c. They proceed to make the petitioners a corporation 
 and to grant a toll for the sole benefit of the proprietors of the 
 bridge for forty years, commencing on the day when the bridge 
 should be opened for passengers. 
 
 Various rights and interests were to be provided for, before 
 the project of the petitioners could be carried into effect. The 
 President and Fellows of Harvard College were to be secured 
 in the payment of the annuity for their right to the ferry, during 
 the charter. The license of the government to obstruct, in 
 some degree, the navigable waters, by the piers of the bridge, 
 was to be obtained. The public accommodation was to be 
 provided for by a bridge of such ample dimensions as the legisla¬ 
 ture should prescribe. And lastly, the petitioners were to be 
 remunerated by the toll for their great expenditure of money 
 and labour upon a then untried and hazardous enterprise. And 
 besides, the college was to be exempted from the duty of keep¬ 
 ing up their boats, while the bridge should be passable. For 
 they could not lay down, any more than they could set up a 
 ferry, without the consent of the legislature. Paine v. Par¬ 
 tridge, 1 Salk. 12. 
 
 Now it is clear to my mind, that all these various rights and 
 interests were intended to be provided for by the act of 1784. 
 The state cannot be permitted to say, against the necessary 
 inference of that act, that the petitioners were not licensed to 
 huild the bridge. They surely are not liable for a nuisance in 
 the navigable waters of Charles river, nor could any indictment 
 be maintained against the college for discontinuing their ferry 
 under the agreement with the proprietors of the bridge. 
 These were the expected consequences of the building of 
 the bridge. And as little was it apprehended that the fran¬ 
 chise in the bridge should be of less extent than the franchise 
 
159 
 
 of the ferry, to which all the parties concerned in the act re¬ 
 ferred. 
 
 This grant was for a valuable consideration, rendered to the 
 public, and (as we have seen) is to be construed favourably for 
 the grantee. 
 
 If the grant had been made directly to the college, could it 
 be supposed that their franchise, or right to toll, had been les¬ 
 sened, because the mode of transportation had been changed ? 
 Let us consider for a moment the nature of these franchises. 
 They are included in the species of tolls, and among many 
 (of which Lord Coke speaks in Webb's Case, 8 Co. 92,) are 
 'pontage and passage. “ The latter,” he says, “ is properly a 
 ferry for the passing of men and cattle over a water, for which 
 the owner has a toll; the former is a toll for passage or carriage 
 over a bridge.” S. P. 13 H. 4, 14, and in the index to that vol. 
 verb. Grant; 17 Yin. Abr. S8, Prerogative, M, b, pi. 18, 19 ; 
 i ieddy v. Welhouse, Moore, 474 ; Smith v. Sheperd, ibid. 574. 
 
 Now I think it was intended by all the parties named or con¬ 
 cerned in the act of 1784, that the proprietors of the bridge 
 should succeed the owners of the ferry, in the toll for the trans¬ 
 portation of all which should come from the east, from the 
 west and from the north to Charlestown, and go from thence 
 to Boston, and back again. In other words, pontage was sub¬ 
 stituted for passage (or ferriage, as it is more frequently called), 
 without any diminution of the extent of the franchise. It 
 would seem therefore to follow, that a new ferry or bridge which 
 would have been a nuisance to the old ferry, would also be a 
 nuisance to the bridge, which took the place of the old ferry. 
 
 I have dwelt much upon this part of the case, because I 
 think it has a strong tendency to show what were the intentions 
 of all parties concerned or interested in the original contract or 
 act of 1784. 
 
 It has been contended, that the right of the college in the 
 ferry was surrendered to the state, and that it merged in the 
 state, so that the grant of the charter for the bridge should be 
 considered as altogether independent of the ferry, which had 
 thus become extinct. 
 
160 
 
 I have two answers to that argument. In the first place, that 
 the right to the ferry did not merge in the state ; and secondly, 
 if it did, it does not affect the question, because a grant may 
 refer to a thing, or to rights, privileges or liberties, which once 
 existed, by inquiries, even in pais, just as well as it may to 
 things, rights, &ic. in existence. 
 
 As to the first point, it would seem to be a violent construc¬ 
 tion of the act of 1781, and of the circumstances which ac¬ 
 companied it, to make it a surrender of the ferry to the state. 
 I admit that it was surrendered either to the state or to the pro¬ 
 prietors of the bridge during its charter. If to the state, it 
 was without consideration ; if to the proprietors of the bridge, 
 it was upon valuable consideration. Now I cannot but think it 
 is more consonant to law and reason, that the parly which paid 
 the value, should have the right, than the party which paid 
 nothing at all. 
 
 Suppose the ice and the tides should have carried away the 
 bridge the next winter after it was completed ; the proprietors 
 would have had a right to continue the ferry during their term, 
 and take the tolls, for they were liable to pay the annuity to the 
 college during that time. And if at the end of the term, there 
 should be no bridge remaining, the college would have the ferry, 
 without a new grant from the state. The college had in effect 
 surrendered or leased it to the proprietors during the charter of 
 the bridge. They have never parted with their reversionary 
 interest. 
 
 But secondly, if it did merge in the state, it would not affect 
 my argument. It once existed, and as a matter of reference, 
 to explain the meaning of the contract of 1785, it would have 
 been just as good if it were merged, as if it were leased only 
 for a term of years to come. 
 
 For example. On the 23d of November 1637, the gene¬ 
 ral court “ leased to Edward Converse the ferry between Bos¬ 
 ton and Charlestown, to have the sole transporting of passen¬ 
 gers and cattle from one sice to the other for three years.” 
 Now suppose the state, after the expiration of the lease, should 
 have granted a toll bridge to be placed where the ferry was kept 
 by Edward Converse, while he was lessee of the state, with all 
 
161 
 
 the privileges in that lease contained ; I think that lease would 
 be taken into consideration, in ascertaining the privileges granted 
 to the proprietors of the bridge, notwithstanding it had expired 
 according to its own limitation. 
 
 It is said by Popham C. J., Cro. Eliz. 591, that where 
 one hath a grant by prescription, whereto a toll hath usually 
 been paid, which is afterwards forfeited to the king, and the 
 king grants it cum omnibus libertatibus ad feriam spectantibus , 
 by this grant the grantee shall have the toll, for toll was formerly 
 belonging thereto ; and therefore the king did not grant a new 
 fair, but the ancient one. 
 
 In the case of the Abbot of Strata Marcella , 9 Co. 30; 
 “ When a charter has general reference to other charters, it is 
 as much in law as if all the charters had been recited.” 
 
 5. But I maintain, that if the charter to the plaintiffs to build 
 a toll bridge, is to be construed without reference to the ferry, 
 it contains a grant of an exclusive privilege or right to have toll 
 for transportation, as extensive as if it had been a grant of a 
 ferry ; and that it contained an implied covenant or undertak¬ 
 ing, on the part of the state, not to grant another bridge so near 
 as to draw away the custom from the old one. 
 
 I maintain that the franchise in a toll bridge is analogous to 
 the franchise of a ferry, and is no more to be confined to the 
 width of the bridge, than a ferry is to be confined to its ways. 
 I ask for a reason, why a different legal rule is to be applied to 
 the franchise in a toll bridge, from that which we have seen is 
 applied to a franchise in a ferry. The franchise consists in the 
 emoluments to be derived from transportation. It is not enough 
 to say that the one is by a bridge and the other is by a ferry. 
 What reason can be given, why a man’s property in a ferry 
 should be protected from near and injurious competition, and 
 his property in a bridge should be exposed to the nearest in¬ 
 vader ? I have heard none, and I think my learned brethren 
 would have given one if there were a good one to give. They 
 are both publici juris, and derivable from the grants of the 
 state. Both are grounded upon tolls, for indemnity and income 
 to the owners. The expenses of the bridge, and its accom¬ 
 modation of the public, are immensely greater than those of 
 
 21 
 
162 
 
 the ferry. They are protected precisely by the same legal 
 principles. Endem est ratio, eadem est lex. 
 
 In Chadwick's Case, the bridge was just as much treated as 
 a nuisance to his ferry, as if a new ferry had been set up where 
 the bridge was placed. In its effect it was infinitely a greater 
 injury. It destroyed the ferry. Why is it that a new bridge 
 or new ferry is a nuisance to an old one ? Because it diverts 
 the travel and transportation, and so deprives the ancient bridge 
 or ferry of the toll which it would otherwise have received. 
 
 The defendants must maintain, that the extent of the fran¬ 
 chise is confined to the width of the bridge. My learned 
 brethren, from whom I am compelled to dissent, must come to 
 that conclusion. I have demonstrated, if any proposition can 
 be demonstrated from the books of the law, that this limited 
 construction is not to be applied to a ferry. I must admit, 
 however, that if the extent of the franchise is so limited to the 
 width of the bridge; if that was the redl intent and meaning of 
 the legislature and of the grantees; it would follow that the 
 plaintiffs have no claim ; their property has not been taken, the 
 constitution has not been violated, and all the general principles 
 to which I have adverted are misapplied. I believe my learned 
 brethren who would maintain that the right is confined to the 
 width of the bridge, do not consider that as a very clear pro¬ 
 position. The case certainly admits (to say no more of it) of 
 another and enlarged construction. Upon this point then I re¬ 
 fer again to the rules applicable to the construction of grants of 
 the king. “ If two constructions may be made, one to make 
 the grant good, the other to make it void, then for the honour of 
 the king and the benefit of the subject, such construction shall 
 be made that the grant shall be good.” The court are “ to con¬ 
 strue the king’s grant most beneficially for the honour of the 
 king, and for the relief of the subject, and not to make any 
 strict or literal construction in subversion thereof.” Now if the 
 case be tried upon those principles, how will it stand ? 
 
 The legislature, for a valuable consideration received by the 
 public, in the bridge erected at immense expense and risk, 
 grant to the meritorious and enterprising proprietors a toll for 
 their own use, first for forty, and then for thirty years more. 
 
163 
 
 But the state lias a right indirectly to withdraw the transporta¬ 
 tion from it. Are these things consistent with the honour of the 
 government and the safety of the people ? 
 
 It would be in vain to tell the proprietors that their franchise 
 remained, notwithstanding a new bridge had been placed in ef¬ 
 fect side by side, which should deprive the old bridge of its 
 emoluments. Suppose, for example, a free bridge should be 
 so placed by the side of the toll bridge—it would seem a mere 
 mockery, to tell the proprietors that they might have all the toll 
 which they could collect for the transportation over their bridge 
 so long as their charter continued. The free bridge would as 
 effectually destroy their franchise, as if an armed force were 
 stationed to prevent any passing over it. Who does not see 
 that their charter would be subverted by this construction ? All 
 must admit the fact which would result. 
 
 But the maxims of the common law should be applied to this 
 subject. One shall not do indirectly, what he has no right to do 
 directly.—Every grant shall carry with it all things which are 
 necessary to the enjoyment of it. “ Quando aliquid prohibe- 
 tur, prohibetur et omne per quod devenitur ad illud.” “ Quando 
 aliquid conceditur, conceditur et id per quod pervenitur ad 
 illud.'’'’ “ The king (said the excellent and independent Chief 
 Justice Gascoine ) cannot, by his charter, oust the common peo¬ 
 ple of their inheritance which they have in the common law.” 
 8 H. 4, 19. 
 
 It has not been contended that the legislature could, at their 
 own will, revoke or repeal their own grant. Notwithstanding 
 this is obviously clear, yet I cannot deny myself the pleasure of 
 quoting a passage from an elaborate opinion for the whole court 
 by Story J. upon this point, in Terrett v. Taylor, 9 Cranch, 
 52. “ But (said the learned judge) that the legislature can re¬ 
 
 peal statutes creating private corporations, or confirming to 
 them property already acquired under the faith of previous laws, 
 and by such repeal can vest the property of such corporations 
 exclusively in the state, or dispose of the same to such pur¬ 
 poses as they may please, without the consent or default of the 
 corporators, we are not prepared to admit; and we think our¬ 
 selves standing upon the principles of natural justice, upon the 
 
164 
 
 fundamental laws of every free government, upon the spirit and 
 letter of the constitution of the United States, and upon the 
 decisions of the most respectable judicial tribunals, in resisting 
 such a doctrine.” 
 
 This is the doctrine of the common law expressed in the 
 language of the time. “ If the king grant a ratification to an 
 incumbent of a church, of which he has the right of present¬ 
 ment, and repeal this ratification, the revocation is void ; for the 
 king cannot (say the court 10 H. 4, pi. 10,) repeal that, nor a 
 grant of pardon, nor a release, et hajus modi.” 
 
 Now I maintain, that if the state could not directly repeal 
 their grant, they could not do that which in its operation and 
 effect would be equivalent to a repeal of it. If this principle 
 be not supported and followed out, we shall never have a reme¬ 
 dy for any violation of contracts, or of the constitution. We 
 shall never see an act reciting, that whereas the legislature did 
 grant three acres of land or a toll for forty years, be it hereby 
 enacted that the grantees shall have only one acre of land, or 
 toll for thirty, or any less number of years. No legislator would 
 vote for a thing of such naked deformity. But if the construc¬ 
 tion of the charter under consideration be limited to the width of 
 the bridge, and a free bridge should be set up side by side, the 
 effect would be, to repeal all the beneficial interest of the pro¬ 
 prietors in their grant. Yet there would be no direct infringe¬ 
 ment of it in terms, for the free bridge which we have sup¬ 
 posed, would not come so near as to touch the old one, but just 
 near enough to draw away all the toll from it. 
 
 If it would not be lawful to grant a new free bridge, is it law¬ 
 ful to grant a new toll bridge, with similar or less toll, side by 
 side of the old one ? What difference is there in the principles 
 of the law applicable to the two supposed cases? I think there 
 is none. The only difference is in the amount of injury which 
 would be sustained from the free or from the toll bridge. The latter 
 would take away perhaps three fourths or more of the franchise 
 first granted, the former, the whole. As if it were lawful to im¬ 
 pair the original grant to any extent short of its annihilation ! 
 
 It has been suggested, but not much pressed, that the legisla¬ 
 ture has as much right to grant rival bridges, as they have to 
 
175 
 
 grant rival banks and insurance companies. But there is an 
 obvious difference between these cases. Grants of banking and 
 insurance corporations merely give an authority to manage their 
 private concerns. A mere faculty or power of doing, in a cor¬ 
 porate name, what they might at common law have lawfully 
 done as individuals. But bridges and ferries are publici juris. 
 A toll is granted for a service rendered to the public. The bo¬ 
 nus which banks or insurance companies pay for their charters, 
 does not make them matters in which the public have an inter¬ 
 est. They may discontinue them and divide the stock just 
 when they please, paying their debts. No individual can com¬ 
 pel a bank to lend him money, or an insurance company to 
 write upon his ship, unless they please. But the proprietors of 
 the bridge or ferry are under great liabilities to the public ; are 
 compellable to permit the public to use them, paying toll. To 
 use the words of the old law as to ferries, “ they are liable to 
 grievous amercements,” for non-performance of their duty. 
 
 It has been argued that the legislature has the right of deter¬ 
 mining upon the expediency of granting bridges, turnpikes and 
 ferries, and that those grants are to be taken subject to the im¬ 
 plied right of the legislature to make others, wherever and 
 whenever, in their opinion, the public good requires, without 
 compensating for any injury which former grantees may receive 
 from such subsequent grants, in any other way or degree than 
 to the legislature itself should seem right. 
 
 If that proposition be true, it proves that legislative grants 
 may indirectly be avoided and defeated, at the will of the gran¬ 
 tors ; so that their grantees for valuable consideration will not, 
 in fact, have any beneficial right of property in them. It would 
 by implication insert in every such grant a provision, that it 
 should be held at the will of the grantor, notwithstanding it 
 purported to be for certain years to come. 
 
 Much reliance has been placed upon the case of Tripp v. 
 Frank, 4. T. R. 666. That was an action for an alleged in¬ 
 jury to Tripp’s ferry over the river Humber, from Kingston upon 
 Hull to Barton. The defendant carried passengers from Kings¬ 
 ton to Barrow, three miles below Barton. But those passen¬ 
 gers had no intention of going to Barton, but only to Barrow, 
 
166 
 
 and the ferry-men were under no obligation to carry them to 
 Barrow. The court held, that they were not obliged to pass 
 over the ferry to Barton, (where they did not want to go,) to 
 get, to Barrow circuitously, when they might go thither directly 
 in the defendant’s private market-boat. 
 
 Let us suppose the Charlestown ferry in operation, and adapt 
 that case to the adjacent topography. Substitute Charlestown 
 for Kingston, Boston for Barton, Sewall’s Point in Brookline for 
 Barrow, and Charles river for the Humber, and the case would 
 stand thus, upon a comparison with the case at bar. If a pas¬ 
 senger wanted to go from Charlestown to Sewall’s point, he should 
 not be obliged to pass over the ferry to Boston, and from thence 
 to Sewall’s point by the way of the Roxbury neck, or Western 
 avenue, if he could get an individual to carry him in his boat di¬ 
 rectly to Sewall’s point. Be it so. But suppose the passenger 
 really wanted to go to Boston, and procured an individual to 
 carry him a little above or a little below the ferry-ways on the 
 Boston side ; that would be a fraud upon the owner of the 
 Charlestown ferry. “ For (said the court in Tripp v. Frank ) 
 if certain persons, wishing to go to Barton, had applied to the 
 defendant, and he had carried them a little distance above or 
 below the ferry, it would be a fraud on the plaintiff’s right, and 
 would be a ground of action.” Now, if it were not for the 
 great respect I have for my learned brethren, I should have 
 thought that that case was much in favour of the plaintiffs. It 
 proves conclusively , that the franchise extends beyond the ferry- 
 ways, and protects the owner against near and injurious trans¬ 
 portation. It seems to point out, in direct and strong language, 
 the injury which the defendants inflict. They transport persons 
 who desire to go to Boston, taking them up a little above the 
 old ferry-ways on the Charlestown side, and landing them a lit¬ 
 tle above the ferry-ways on the Boston side. The court say, 
 in the case cited, that “ this is a fraud upon the plaintiff's 
 right." 
 
 There is a provision in a colonial ordinance, “ that whoso¬ 
 ever hath a ferry granted upon any passage, shall have the sole 
 liberty for transporting passengers from the place where such 
 ferry is granted, to any other ferry-place where ferry-boats are 
 
167 
 
 to land, and any ferry-boat that shall land passengers at any 
 other ferry, may not take passengers from thence, if the ferry¬ 
 boat of that place be ready.” For example—it might be law¬ 
 ful for the Winnesimmet ferry-boat to carry passengers to Charles¬ 
 town ferry, but not from thence to Boston, unless the Charles¬ 
 town ferry-boat was not ready. Col. Laws (edition of 1672), 
 50, tit. Ferries. 
 
 But it is said that there has been a uniform course of legisla¬ 
 tion which should govern the construction of the grants now 
 under consideration. And we have been referred to the char¬ 
 ters for the West Boston bridge, the Canal bridge and the Pris¬ 
 on Point dam, the Mill-dam or Western avenue, South Boston 
 free bridge, Malden bridge, Chelsea bridge, which destroyed 
 Winnesimmet ferry, and of two parallel turnpikes from Boston 
 to Watertown. 
 
 In regard to the Western avenue, perhaps it could not be 
 considered a nuisance to the Charles river bridge, especially 
 after the proprietors of the Charles river bridge had received 
 compensation from the West Boston bridge which is between 
 them. Besides, the Western avenue leads from Boston westerly 
 to Brookline, and would not materially, if at all, affect the 
 course of travel between Boston and Charlestown, communicat¬ 
 ing with the northerly and easterly parts of the state. If the 
 plaintiffs had complained against the proprietors of the Western 
 avenue, it is very probable that a jury would not have found it 
 to be a nuisance, in view of all the facts which have relation 
 to it. 
 
 In regard to West Boston bridge, such compensation was re¬ 
 quired by the legislature to be made, as induced the proprietors 
 of the Charles river bridge to acquiesce. They had an exten¬ 
 sion of their charter for thirty years beyond the term of the 
 original grant, and the fact, “ that the erection of the proposed 
 bridge might diminish the emoluments of the proprietors of the 
 Charles river bridge,” was mentioned in the report of the 
 committee which was accepted by the legislature, as one of the 
 reasons which induced them to make the additional grant. It 
 is true indeed, that the committee report as their opinion, “ that 
 there was no ground to maintain that the act incorporating the 
 
168 
 
 proprietors of Charles river bridge, was an exclusive right to 
 build over the waters of Charles river. ” And that opinion may 
 be very well founded; for the river extends many miles beyond 
 West Boston bridge to places which could not be.considered as 
 near to Charles river bridge. Besides, it is at most to be con¬ 
 sidered as the opinion of one party to a contract. But it was 
 represented by the proprietors of Charles river bridge, that it 
 would “ operate injustice and injury ” to them, if the legislature 
 should grant the charter for the building of the West Boston 
 bridge. The corporation did not apply in forma pauperis , but 
 under a claim of right; and the legislature thought it reasona¬ 
 ble and proper to make the additional grant. But why was it 
 reasonable or proper, if, by the true intent and meaning of the 
 original grant, the proprietors of Charles river bridge were lim¬ 
 ited to the width of their bridge ? 
 
 It was said, and not denied, that the free bridge at South 
 Boston was not opposed by a majority of the proprietors of 
 South Boston toll bridge, because their real estate would rise 
 in value more than they would lose by the free bridge. 
 
 The Winnesimmet ferry is over a wide arm of the sea be¬ 
 tween Chelsea and Boston. It sustained some damage by the 
 Malden bridge (which was erected where the penny ferry had been 
 before kept), but more damage by the Chelsea bridge. If Wil¬ 
 liams, who owned the Winnesimmet ferry, had taken any legal 
 measures to vindicate his rights, they wmuld have been ascer¬ 
 tained, and the injury redressed, if any had been sustained. 
 The law was as free for him as it was to Chadwick. All that 
 is proved in that case is, that the legislature did not think it was 
 one which required a compensation. And from Williams’s ac¬ 
 quiescence it may be inferred, that he did not think it was worth 
 the trouble and expense of a lawsuit. 
 
 The same remark may apply to the case of the rival turn¬ 
 pikes. There has been no judicial investigation. We know 
 not how far the proprietors expected their indemnification to 
 arise from toll, or from the additional value which their roads 
 would confer on some other property of the proprietors. 
 
 All the injury sustained by the Malden bridge, by the erection 
 of Chelsea bridge, was compensated by permitting the former 
 to become interested in the lattter. 
 
169 
 
 In the case of the Canal bridge, no compensation was granted 
 to the plaintiffs. Probably the legislature believed that a great 
 part of the travel which would pass over the Canal bridge 
 would have passed over the West Boston bridge, for the build¬ 
 ing of which, compensation had been made to the plaintiffs, by 
 an additional charter. 
 
 And the Prison Point dam was for the accommodation of 
 persons going from Charlestown to Cambridge, and so within 
 the principle of Tripp v. Frank. 
 
 Sometimes the legislature made a compensation to a party in¬ 
 jured by their grant, and sometimes they did not. In the latter 
 case the presumption would be, that they thought the party had 
 no just claim for damages ; and if he acquiesced, that presump¬ 
 tion would be strengthened. 
 
 In most cases the compensation was accepted, and of course 
 there was nothing heard of claims for damages in such cases. 
 Thus, on the same day that the charter for Haverhill bridge 
 was granted over the Merrimac, a charter was granted for a 
 bridge over the Piscataqua. And a provision was made for 
 compensating the injury which the ferry there would receive, 
 somewhat analogous to that which was made to Chadwick. But 
 no provision for a jury was made in either case. Whether Rice 
 (who owned the ferry) accepted it or not, I do not know. If 
 he had resisted, his legal rights would have been maintained. 
 
 It is not safe to follow legislative precedents in the formation 
 of a judicial opinion. We have a report of my Lord Coke, of 
 an unwarrantable grant made by Queen Elizabeth, and a simi¬ 
 lar grant made by her father, Henry VIII, was cited to support 
 the grant of the queen. But the court, “ nullo contradicente aut 
 reluctante ,” held her letters patent to be void. I would say in 
 regard to this part of the case, as the court did in that, “ quod 
 judicandum est legibus, non exemplis.” 
 
 It has been contended for the defendants, that if the legisla¬ 
 ture could not lawfully grant bridges and ferries when and where 
 they thought the public good required, great inconveniences 
 would follow. Now I am not disposed to maintain in this argu¬ 
 ment, that the legislature may not grant as many charters for 
 bridges, &c. as they may think necessary for the public accom- 
 
 22 
 
170 
 
 modation. Let them take private property for public uses, but 
 not in welcome, unless it be given ; not at their own price 
 against the will of the owner, but subject to a compensation to 
 be fixed by a jury of the country. 
 
 That is the manner in which private property is protected in 
 England. And when it is taken by the authority of parliament 
 for public uses, the special authority must be strictly pursued. 
 Rex v. Croke, Cowp. 26. If the persons refuse or are unable 
 to agree, the damages are assessed by a jury. The government 
 take what they want for the public accommodation, but they 
 pay for it, at an agreed price, or an assessment of a jury. 
 Leader v. Moxton, 3 Wils. 466. In New York the same just 
 principles are adopted. The People v. Platt, 17 Johns. R. 
 195; Bradshaw v. Rogers, 20 Johns. R. 106. 
 
 Again, it is said that the rule contended for by the plaintiffs 
 is impracticable and uncertain. How near (it is inquired) is it 
 within the authority of the legislature to grant a new bridge, 
 without creating a private nuisance to one which had been be¬ 
 fore granted ? 
 
 Now I think the plaintiffs are not to answer that question “ by 
 compulsion.” It is not necessary for them, in this case, to fix 
 precisely how far on each side of their bridge their franchise 
 extends. If they are not confined to the width of their bridge, 
 the defendants’ bridge must be considered near. It is in effect 
 side by side. It leads from the same promontory in Charles¬ 
 town to the shore directly opposite. So that if the terms of 
 the original grant of the ferry and bridge were less extensive 
 than the law Would imply, they are certainly broad enough to 
 cover the place where the new bridge has been granted, unless, 
 as has been before said, the right be confined to the width of 
 the bridge. But if the terms of the grant were as broad as a 
 grant of a ferry across a river, and the question should be asked, 
 how near to it another should be granted, I would answer in the 
 words of the books, so near as not to impair the profits of that 
 first granted. Or, to use the words of Chancellor Kent in Ogden 
 v. Gibbons, 4 Johns, Ch. R. 161, when speaking of the free¬ 
 hold interest in a ferry, or fair, or market, “ the grant must be 
 so construed as to give it due effect, by excluding all contigu- 
 
171 
 
 ous and injurious competition .” These questions may be set¬ 
 tled in regard to a bridge, just as they have been for ages settled 
 in regard to a ferry. They are to be tried and determined by 
 a jury, unless, as in the case at bar, that mode of trial is waived 
 by the parties, who consent that the court shall try the facts as 
 well as the law. Thus it is said in Fitzh. N. B. 184, A. note b : 
 “ It shall be put in issue, whether it be a nuisance or not A 16 
 Yin. 26, tit. JVuisance, G. pi. 2, S. P. To maintain that issue, 
 the law would require of the plaintiff’ to prove that his was the 
 elder franchise, that the new one was near, and that it impaired 
 the profits of that which was first granted. Haverhill bridge 
 was, in contemplation of law, near to Chadwick’s ferry, although 
 it was at the distance of forty rods . 
 
 But then it is inquired, what diminution, or shall every possi¬ 
 ble diminution of profits entitle the owner of the ancient fran¬ 
 chise to a remedy ? That question need not be definitely settled 
 in this case, for the new bridge has already taken three fourths 
 of the profits of the old one. But I have no difficulty in meet¬ 
 ing that question. If there were only small damages proved, 
 small damages would be recovered. If it came within the rule 
 of de minimis, &;c. the law would not concern itself to afford re¬ 
 lief. There is no more reason why one entitled to small dam¬ 
 ages should not recover in this, as well as in any other judicial 
 proceeding. 
 
 It was suggested in the course of the argument for the de¬ 
 fendants, that the franchise, being a local incorporeal heredita¬ 
 ment, might be considered as real estate, for the taking of which 
 their act of incorporation makes provision for a compensation, 
 to be ascertained by jury. But the provision was evidently in¬ 
 tended to operate in a more limited sense. If that had not been 
 the case, the word property (which is used in the constitution) 
 would have been employed, instead of the words “ real estate .” 
 It is clear therefore that no provision was made for any injury 
 to the plaintiffs’ franchise. I forbear to remark on the great 
 amount of property involved in the decision of this cause. Im¬ 
 mense as it is, it would be purchased too dearly by the violation 
 of the plighted faith of the state. 
 
172 
 
 I lay out of the case all the objections which have been made 
 to the right of the plaintiffs to have the benefit of their addition¬ 
 al charter, by reason of any alleged fraud in obtaining it, or for 
 an alleged want of an acceptance, or non-performance of du¬ 
 ties required by it:—and in this, I am happy to concur with 
 my brethren. The existence of the plaintiffs as a corporation 
 is acknowledged in the charter to the defendants, and the validi¬ 
 ty of the additional charter can be properly questioned and tried 
 in a quo warranto, in behalf of the state, and not in this inci¬ 
 dental manner by a stranger. 
 
 Something was suggested in the argument for the defendants, 
 about the solicitude which the Court must feel in deciding against 
 the validity of legislative enactments. It should be remember¬ 
 ed however, that the solicitude which a judge should feel, does 
 not arise so much from the power and situation of the parties, 
 as from an anxiety to understand and declare the law of the 
 land which is applicable to the case. When, after patient hear¬ 
 ing and examination, he has arrived at that point, there should be 
 an end of solicitude. The consequences, which may be ex¬ 
 pected to follow' from the law', are common to the judge and his 
 fellow-citizens. I speak not of personal consequences and 
 expectations, which, as they have little or no tendency to show 
 what the law is, are not to have influence in the decision. I 
 am free to declare, however, that the principles and results 
 which I would adopt, would be as beneficial, as they appear to 
 me to be clear. There would be a continued and increasing 
 confidence in legislative contracts. Men of capital and energy 
 would embark their funds in enterprises of a public character, 
 in the hope that their own fortunes might be advanced with the 
 public prosperity. The state w'ould command the wealth and 
 services of the people. But let the reverse of this be suspect¬ 
 ed, and public credit will be paralysed. It is more sensitive 
 than the plant which withers upon the touch, but will revive. 
 Touch public credit, and it dies. It may stand awhile, as a tree 
 which has been destroyed by the worm at the root, but will 
 yield neither fruit nor shade when most needed. 
 
 In the construction of contracts, the law regards the subject- 
 matter more than the manner; the substance more than the 
 
173 
 
 form ; the spirit more than the letter. “ In fide, quid senseris, 
 non quid dixeris, cogitandum.’ 1 '' Cic. T)e Off. lib. 1. 
 
 There are some frets in the case which show the intent and 
 meaning of the parties to the act of 1784, in language not to be 
 misunderstood. All the direct communication between Boston 
 and Charlestown had been over the ferry there, from the first 
 settlement of the country. The petitioners for the bridge re¬ 
 ferred the legislature to that fact. They in effect informed them 
 of the sources from whence they expected to derive their reve¬ 
 nue. The travel from the west and from the north and from the 
 east, passing from Charlestown to Boston, was to pass over a 
 toll bridge, instead of a toll ferry. And that toll was to be for 
 the use of the petitioners. That was the ground work, upon 
 which their then perilous enterprise rested. And the legislature, 
 by their granting their petition, assented to all the reasonable ex¬ 
 pectations which it had disclosed. 
 
 If it had been proposed to pass an act for the sequestration of 
 the toll of Charles river bridge to an amount not exceeding 
 60,000 dollars, to build a bridge for the use of the common¬ 
 wealth where the Warren bridge has been built, it is not believed 
 that any member of the legislature would have voted for it. A 
 sense of justice would have prevented the adoption of a measure 
 so inequitable and oppressive upon its front. But what is the 
 difference between a sequestration of the money actually in 
 the plaintiffs’ treasury, and an act to prevent that amount from 
 going into their treasury. I ask, what difference is there in ef¬ 
 fect, of the one and of the other upon the plaintiffs’.interest. 
 The difference is in form only, not of substance, assuming, what 
 it is believed cannot be denied, that all the travel over the War¬ 
 ren bridge would have passed over the Charles river bridge, if 
 the Warren bridge had not been built. 
 
 By the 10th section of the 1st article of the constitution of the 
 United States, it is provided, that no state shall pass a law im¬ 
 pairing the obligation of contracts. By the 10th article of the 
 declaration of rights in the constitution of Massachusetts, it is 
 provided, that “ whenever the public exigencies require that the 
 property of any individual should be appropriated to public uses, 
 he shall receive a reasonable compensation therefor.” By the 
 
174 
 
 12th, “ 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.” By the 15th, that “in all controversies concern¬ 
 ing property and in all suits between two or more persons, ex¬ 
 cept in cases in which it has heretofore been otherwise used and 
 practised, the parties have a right to a trial by a jury ; and this 
 method of procedure, shall be held sacred, unless, in causes 
 arising on the high seas, and such as relate to mariners’ wages, 
 the legislature shall hereafter find it necessary to alter it.” It 
 has not been contended that the case at bar falls within the ex¬ 
 ception. 
 
 6. I proceed to consider very briefly, the operation of the new 
 bridge, and the consequences resulting from the grant of it. 
 
 When the charter for the erection of the Warren bridge pass¬ 
 ed, the plaintiffs had a right to the toll granted to them for the 
 transportation over their bridge betfveen Boston and Charlestown, 
 for twenty-eight years then to come. The defendants are au¬ 
 thorized by the legislature to build the new bridge, but they are 
 to be paid for all costs and charges, and with interest too, out of 
 the toll withdrawn from the old bridge. The effect will be thus 
 to compel the plaintiffs to pay for the new bridge. But that is 
 only the beginning of their trouble. When it is built with the 
 money so by the legislature withdrawn from the old bridge, the 
 plaintiffs are not to have it. In six years, or sooner, the state is 
 to come into full possession of it in complete repair. If there 
 should be no more legislation about the matter, it then becomes 
 a free bridge. If the present rate of toll should be continued, it 
 will probably take three fourths or more of the toll from the pro¬ 
 prietors of the old bridge. If the rate should be lowered, a 
 greater proportion will be withdrawn, and the state, (the grantor !) 
 the party without whose permission the new bridge could not 
 have been built, the party contracting with the plaintiffs, by force 
 of their own act, will receive the toll to their own use. It would 
 be very doubtful if the plaintiffs could collect toll enough at the 
 old bridge to pay the annuity to the college. And if the state 
 should leave the new bridge open as a free bridge, the plaintiffs’ 
 franchise will be utterly destroyed. 
 
175 
 
 I think the last grant would not be supported by the law of 
 England, if the question were between the king and his subject. 
 The principles of the common law and of natural justice, would 
 restrain the royal prerogative. The right of a trial by jury 
 would be there maintained. It would be a matter of deep con¬ 
 cern, that property should be less protected under our free insti¬ 
 tutions than - it is in our parent country. We have embodied the 
 principles of the common law and of natural justice in our con¬ 
 stitutions of government, which are paramount to legislative 
 enactments, and binding upon the judicial department. 
 
 Now with all my habitual and sincere respect for the legisla¬ 
 ture, I cannot but think that the grant to the defendants is incon¬ 
 sistent with the grants before made to the plaintiffs. The last 
 act must have passed without a due regard to the constitutional 
 rights vested in the plaintiffs. It impairs the obligation of the 
 grants before made to the plaintiffs. It takes away their proper¬ 
 ty for public uses, without compensation, against their consent, 
 and without provision for a trial by a jury. It is therefore void. 
 
 In my judgment, therefore, the plaintiffs have maintained their 
 complaint, and this Court should grant relief. 
 
 Parker C. J. [After stating the pleadings.] Several pre¬ 
 liminary questions arising out of these multifarious pleadings ap¬ 
 pear to us not to require much consideration. The first is, whether 
 the act of 1791, extending the franchise of Charles river bridge, 
 was accepted or not. It was for the benefit of the corporation, 
 and therefore may be presumed to have been accepted. It was 
 accepted formally by vote before the expiration of the first char¬ 
 ter, and before the granting of Warren bridge, which is sufficient. 
 
 In regard to the relinquishment of double toll on the Lord’s 
 day, it appears that from about the time of passing the act of 
 1791, they ceased to exact it, and that it has not been taken 
 since; which is a sufficient relinquishment. 
 
 There have not appeared, on the argument, any facts in con¬ 
 troversy which have any important bearing on the principal ques¬ 
 tions. The allegation of fraud in obtaining the extension of the 
 charter has not been made a matter of argument, and it has 
 been properly omitted 5 for it does not appear that the legisla¬ 
 ture have ever called in question their grants on this or any other 
 
176 
 
 ground, and none but the public could raise that question ; and 
 they, only by legal process, such as a quo warranto, under which 
 the corporation might defend themselves against such a charge. 
 Indeed the recognition by the legislature, of the corporation of 
 Charles river bridge, in the very act incorporating the War¬ 
 ren bridge, and of their right to continue, and discharging them 
 from half the annuity to Harvard College, is a sufficient answer 
 to this charge. 
 
 The way is thus prepared for the consideration of the real 
 questions in the case, which are indeed of solemn import, and 
 require, as they have received, the most deliberate attention 
 which our time and opportunity will admit of. 
 
 The argument on the part of the plaintiffs rests upon divers 
 propositions of a general nature, and upon the application of them 
 to the facts which exist in this case. 
 
 The propositions themselves are either so clear as to be admit¬ 
 ted by the counsel for the defendants, or so well settled by judi¬ 
 cial tribunals of the highest authority, as would render any at¬ 
 tempt to shake them wholly unavailing. 
 
 That a grant of land or other property, or of a franchise, by a 
 legislative body, having authority to make the grant under the 
 constitution by which alone they can exercise any power, is a 
 contract touching the thing granted, which cannot be repealed, 
 annulled, or restricted in its operation by the power which grants, 
 otherwise than according to a fair constructiqn of the terms of the 
 grant according to the rules and principles of law affecting like 
 grants or contracts made by individuals, and by process adminis¬ 
 tered by the ordinary judicial tribunals, was settled in the case of 
 Fletcher v. Peck, 6 Cranch, 87. Indeed, without any adjudica¬ 
 tion, the principle so clearly and necessarily results from the 
 original constitution of free governments, and the maxims of uni¬ 
 versal justice, that it never could be called in question but in 
 times of misrule and anarchy. 
 
 That the property of individual citizens cannot be appropriated 
 to the public use, except that portion of it which he contributes 
 proportionally with all other citizens, without a just and reasona¬ 
 ble compensation, and this not at the will of the public agents, 
 but to be assessed and determined by his peers in a trial by jury, 
 
177 
 
 is declared by the 1 Oth article of the bill of rights prefixed to 
 our constitution, and in one of the amendments to the constitu¬ 
 tion of the United States; declared only, and not enacted or for 
 the first time made law; for without these provisions, I hesitate 
 not to say, that nowhere, except where a despotism of some 
 kind or other existed, could the government lay its hands upon 
 the property of any subject without making him a fair compensa¬ 
 tion, and hold it against the judicial power of such a government. 
 
 And even where no property is taken to the public use, hut 
 the rights and interests of any one in a contract shall be attempt¬ 
 ed to be impaired or destroyed by an act of legislative power, 
 such act becomes wholly inoperative and void by a most wise and 
 wholesome provision of the constitution of the United States, 
 which has been enforced in several cases of the highest impor¬ 
 tance, by the Supreme Court of the United States. 
 
 These fundamental principles are no longer considered dis¬ 
 putable ; they are admitted in their fullest extent by the counsel 
 for the defendants in this case ; and on the other hand, it is ad¬ 
 mitted by the plaintiffs, that an act of the legislature, whether it 
 be a law, or a. grant, or a contract, if not repugnant to either con¬ 
 stitution, cannot be called in question by the judicial tribunals on 
 the ground of inexpediency, or injustice, or inconvenience to any 
 individual citizen on whose property or interests it may have an 
 injurious operation. So that the questions before us are not 
 questions of principle, but of application of principles to the facts 
 and circumstances of the case on trial. 
 
 To show then that the authority under which the defendants 
 justify the erection and maintaining of the Warren bridge, which 
 is so manifestly prejudicial to the interests and property of the 
 proprietors of Charles river bridge, is not available to that pur¬ 
 pose, the latter assert, that by virtue of the act of 1784 and that 
 of 1791, and the consent of the President and Fellows of Har¬ 
 vard College, they became the lawful owners and proprietors of 
 an exclusive right of transportation by means of their bridge, of 
 all passengers and vehicles over and across Charles river between 
 Boston and Charlestown, for the toll established by the act of 
 1784, for the term of seventy years from the first opening of the 
 bridge to travel; that this was a franchise which they derived 
 23 
 
178 
 
 from the grant of the legislature, for which they paid a valuable 
 consideration in the expense of erecting and maintaining the 
 bridge, and in the annuity of 200/. which they have paid and are 
 bound still to pay to the President and Fellows of Harvard Col¬ 
 lege ; that this is a property, within the sense of that term a3 
 used in the 10th article of the declaration of rights, and there¬ 
 fore, admitting that the public interests required it should be 
 taken from them and appropriated to the public use, yet as no 
 compensation is provided for them in the act by which it is at¬ 
 tempted to be taken from them, that act is wholly void ; and that 
 the bridge built under its supposed authority, as it diverts from 
 their bridge a large portion of its travel and profits, is a nuisance, 
 which ought by this Court, by virtue of its authority under the 
 statute of 1827, c. 88, to be abated, or that some other sufficient 
 remedy should be applied. 
 
 This is one ground on which it is supposed the bill ought to be 
 sustained and relief granted, on the principles and provisions of 
 the constitution of this commonwealth, without reference to the 
 constitution of the United States. 
 
 But it is also contended, that although the interests and 
 rights of the proprietors may not come within the meaning of the 
 term property, as used in the 10th article, and although the act 
 of 1827, incorporating the proprietors of Warren bridge, may not 
 be construed to be an appropriation of their property to the pub¬ 
 lic use, so as to make a provision for compensation essential to 
 the validity of that act; yet that the acts of 1784 and 1791 rela¬ 
 tive to the Charles river bridge, constituted a contract between 
 the public and the proprietors of Charles river bridge, by virtue 
 of which those proprietors acquired a right, exclusive of all oth¬ 
 ers, to the transportation over their bridge, of all persons who 
 should have occasion to pass and repass between Boston and 
 Charlestown, co-extensive with the right of the old ferry, for the 
 term of seventy years, and that there is an implied contract in 
 those acts, that the public should not, through the legislature, 
 grant authority to any other person or corporation to erect anv 
 bridge, or to establish any other mode of transportation, so near 
 to Charles river bridge as to draw from it any portion of its trav¬ 
 el, and thereby diminish its profits; and that the act incorporat- 
 
179 
 
 ing the proprietors of Warren bridge necessarily having this ef¬ 
 fect, without providing any indemnity for the proprietors of 
 Charles river bridge, is void by the constitution of the United 
 States, which inhibits any state from making or passing any law 
 which shall impair the obligation of contracts. 
 
 These two propositions, on which the merits of the bill rest, 
 are in some measure distinct in their character, as they are re¬ 
 ferred for their support to the different constitutions of the Uni¬ 
 ted States and the commonwealth, but the same general princi¬ 
 ples seem necessarily involved in both ; or at least both of them, 
 to my mind, seem to be equally affected by the provision of the 
 constitution of the United States. If by virtue of the legislative 
 acts, and the supposed succession to the rights of the college by 
 virtue of those acts, a property was acquired in the franchise of 
 toll to the extent contended for in the first proposition, it is be¬ 
 cause these acts assume the character of a grant or contract to 
 that effect; and then a subsequent grant to another corporation, 
 inconsistent with the right so acquired by the first, unless in a 
 form warranted by the constitution, would be, directly or indirect¬ 
 ly, but necessarily, to impair the obligation of the first contract, 
 and so would fall within the prohibition of the constitution of the 
 United States, as well as within the 10th article of the declara¬ 
 tion of rights in the constitution of Massachusetts ; so that a de¬ 
 cision on either branch of the case would seem to me liable to a 
 revision by the Supreme Court of the United States, within the 
 constitution and laws providing for the appellate jurisdiction of 
 that court. 
 
 In discussing the first proposition, it seems to be necessary to 
 consider briefly the right enjoyed by the college to the ferry, 
 previous to the act of 1784, by which the building of Charles river 
 bridge was authorized ; and then, whether by virtue of that act, 
 that right, whatever it may have been, was transferred or passed 
 over to the proprietors of Charles river bridge. 
 
 The property or right in the ferry is supposed to have been 
 granted to the college, by the existing government of the colony, 
 in the year 1640 ; which was two years after the establishment 
 of Harvard College, according to the account of this institution 
 given by Hutchinson, its foundation by the government having 
 
180 
 
 been laid two years before, viz. in the year 1638. In an ordi¬ 
 nance respecting the college it is recited, that “ for the encour¬ 
 agement of the college this court hath given the sum of 400?. 
 and also the revenue of the ferry betwixt Charlestown and Bos¬ 
 ton. ” This I should judge was in 1638, a ferry then being in 
 existence by authority of the colonial government, probably un¬ 
 der lease to Converse, it appearing to have been leased to him 
 in that year by some agents of the government. This first grant 
 to the college, of the revenue of the ferry, perhaps would not be 
 construed to be a grant of the ferry itself in full property, but 
 might be satisfied by leaving the property and right and the whole 
 control to the government, paying over to the treasury of the col¬ 
 lege the net revenue thereof. 
 
 But in 1640 a direct grant of the ferry itself was made to the 
 college, which, according to the usual interpretation of the simple 
 terms generally made use of in public proceedings of that day, 
 w’ould be construed a grant of the ferry itself and all its rights to 
 the college in perpetuity, unless the effect should be found to 
 have been controlled or restricted by contemporary acts, or acts 
 passed soon after, showing clearly the intent of the legislature to 
 have used the term grant in a more limited sense. The words 
 of this grant are, “ the ferry between Boston and Charlestown is 
 granted to the college.” This probably was intended to grant to 
 the college no more than what had been previously granted, that 
 is, the revenue of the ferry or the profits of it; because the fer¬ 
 ry itself was at that time in the hands of Converse or some other 
 lessee, it appearing that in 1637 power was given to the gover- 
 nour and treasurer to let it for three years, and Converse being 
 the lessee in 1638. And in 1640 authority was given again to 
 let it on the expiration of Converse’s lease. And that this was 
 the sense in which the grant was considered, may be inferred 
 from the ordinance of 1650, by which the power of leasing is 
 given to the college, the ferry having been, until that time, leased 
 by authority from the government, the college enjoying undoubt¬ 
 edly the rent. And in 1654, “it is ordered by this court and 
 the authority thereof, that besides the profit of the ferry formerly 
 granted to the college, which shall be continued, there shall be 
 levied,” &c. 
 
181 
 
 To me it appears, from these several colonial acts respecting 
 the college and the ferry, that the absolute property in the ferry 
 itself was not intended to be vested in the college ; but still, as 
 it was undoubtedly intended that they should enjoy the revenue, 
 and as they did enjoy it, under various modifications, down to the 
 time of the incorporating Charles river bridge, it would be con¬ 
 sidered that the government charged itself as trustee of the fer¬ 
 ry for the benefit of the college, and that afterwards they relin¬ 
 quished this trust, and the college thus became owners of the 
 ferry, subject to such regulations as should from time to time be 
 made by the legislature for the public accommodation and con¬ 
 venience. These regulations are not inconsistent with a right 
 of property in the college, for the legislature having originally 
 the only right to grant the exclusive privilege of transportation 
 over public waters, and to establish tolls, &c. the grant of this 
 privilege would always be considered as subject to the superin¬ 
 tendence of the legislature, unless that was expressly surren¬ 
 dered. 
 
 I entertain no doubt, therefore, that in the year 17S5, Har¬ 
 vard College was the proprietor, in the sense above mentioned, 
 of the ferry between Boston and Charlestown, and that it could 
 not constitutionally have been taken from them without their 
 consent. 
 
 But what was the ferry-right conferred by the colonial gov¬ 
 ernment on Harvard College ? Was it exclusive along the whole 
 shores between Boston and Charlestown, or limited to the ferry- 
 ways as they existed at the time of the original grant ? It does 
 not appear to me that either one or the other of these construc¬ 
 tions is the true one. 
 
 It is material to consider the state of things at the time, in 
 order to ascertain the nature and extent of this grant. There 
 was pre-existing a ferry, which was the object of the grant ; it 
 was in the hands of Converse under a contract with the govern¬ 
 ment ; it had been established before the lease to Converse, 
 and all the subsequent proceedings must be supposed to have 
 had reference to the ferry as at first established. 
 
 The first we learn of it is from the record of the court of 
 assistants, entered November 9, 1630 ; probably the first 
 
182 
 
 act of legislation by the new government. It is ordered, “ that 
 whoever shall first give in his name to Mr. Governour, that he 
 will undertake to set up a ferry betwixt Boston and Charlton, 
 and shall begin the same at such time as Mr. Governour shall 
 appoint, shall have Id. for each person,” he. And on Novem¬ 
 ber 5, 1633, there is this record ; “ Mr. Richard Brown is al¬ 
 lowed to keep a ferry over Charles river, against his house, and 
 is to have 2d.” he. This ferry was then from the Charlestown 
 side only, and in 1635, it was ordered that there should be a 
 ferry set up on the Boston side, by the Wind-mill lfill. In 
 1637 or 1638, the ferry, that is, the existing ferry, between 
 Charlestown and Boston, was leased to Converse. And in 
 1640 the same ferry, that is, the ferry then existing between 
 Charlestown and Boston, is granted to the college. 
 
 Now I am not able to gather from these records, any thing 
 like an exclusive grant to the college, of a ferry along the whole 
 shore of the two towns. It was exclusive in one sense ; that is, 
 no individual could set up another ferry without the license of 
 the government, who had the ordering and disposition of all 
 passages over public waters ; but I think the government itself 
 was not precluded from establishing another ferry between Bos¬ 
 ton and Charlestown as soon as the population of either town 
 should have so spread as to have rendered it highly inconven¬ 
 ient to be confined to the old ferry. If, for instance, West 
 Boston, then probably a waste, had in twenty years afterwards 
 become as populous as it now is, and a ferry from a southerly 
 point in Charlestown to Barton’s point had been deemed to be 
 for the public convenience, I think the colonial legislature would 
 not have hesitated, and I think that they need not have hesitated, 
 to establish such a ferry, without making any compensation to 
 the old ferry, unless an actual injury was thereby done, because 
 they had done nothing in their former grants which could be 
 fairly construed to take away this right. They granted a ferry 
 between Boston and Charlestown, or the ferry as it then exist¬ 
 ed with reference to the actual state of population and business, 
 without restraining themselves prospectively from providing for 
 future exigencies. 
 
183 
 
 They certainly did not mean to secure to the owners of the 
 ferry the right to transport for toll all who should have occasion 
 to visit Boston through Charlestown, or the country from Bos¬ 
 ton, for two centuries, and as much longer as the country should 
 endure. They were providing for existing necessities; they 
 were desirous of adding something to the income of the college, 
 and established in their favour this easy contribution from the 
 people, valued at about 40 l. per annum; and this was to con¬ 
 tinue with all its natural increase until the throng of passengers 
 should demand another ferry, or a bridge, or some other mode 
 of transportation ; then, if it became necessary to destroy the 
 ferry, they would have been bound to indemnify the college for 
 their actual loss ; or if they diminished their income, they were to 
 make it good, because it was within the fair construction of their 
 grant, that they would do nothing to defeat it or diminish its ac¬ 
 tual value. They could not have resumed their grant of the 
 ferry, without paying the proprietors, nor could they indirectly 
 destroy its value, by the grant of another ferry so near as to 
 draw away its custom. But had the public interest required 
 that a bridge should be erected instead of a ferry, of which 
 public interest the legislature must be the judge, they could 
 consistently with public justice and with the right of private 
 property have made this change, only providing for a just com¬ 
 pensation to the proprietors, for the value of the property as it 
 would then be estimated. This restriction upon the sovereign 
 power does not, I apprehend, depend upon any limitation of its 
 authority by written constitution, but results from the immuta¬ 
 ble principles of justice, which require an equal contribution to 
 public exigencies, and would prohibit the sacrifice of the pro¬ 
 perty of one, even for the advantage of the whole. Such prin¬ 
 ciples are recognised in all civilized governments, and if not ex¬ 
 pressly declared, are practically aeted upon. 2 Kent’s Com. 
 270. I speak of acts of the government the direct and imme¬ 
 diate effect of which is the destruction of private property, or the 
 appropriation of it to public use. There are cases of a ques¬ 
 tionable nature, where great private loss may be the conse¬ 
 quence of some public act for the general good, which do not 
 fall within this principle. 
 
184 
 
 It is the right and the duty of all governments, especially 
 those over new countries, to facilitate the intercourse of busi¬ 
 ness between its subjects by opening new roads and construct¬ 
 ing new avenues as the population, and the consequent demands 
 for such improvements, shall increase. In doing this it will 
 often happen, that estates upon old roads are diminished in 
 value ; the seat of business may he transferred from one town 
 or village to another ; inns and stores, erected with a view to 
 the travel or business as it exists, may become deserted and of 
 little value; but the proprietors would have no claim upon the 
 government for redress, for it is necessarily one of the contin¬ 
 gencies on which property is acquired and held, that it is liable 
 to be impaired by future events of this kind. 
 
 The whole history and policy of this country from its first 
 settlement, furnish instances of changes and improvements, the 
 effect of which has been to transfer the aascititious value of real 
 estate in one town, resulting from its favourable position for trade, 
 to another, which, by alteration of roads, erection of bridges, or 
 more recent interior settlements, has taken its place as a thor¬ 
 oughfare, or as a place of transit or deposit for articles of mer¬ 
 chandise. Losses of this kind never have been, and probably 
 never will be compensated ; nor can compensation be reasonably 
 expected by the sufferers, any more than by the dealers in any 
 branch of trade or in any mechanical employment, who find 
 their profits and emoluments diminished and sometimes destroy¬ 
 ed by the change of fashion, or by new inventions for carrying 
 on the same branch of business in a cheaper and more accepta¬ 
 ble manner. Such losses are the effect of the general system 
 of legislation upon subjects of this nature, adopted in the early 
 part of our history, and constantly practised through all the 
 changes of government; so that property is in fact held upon 
 a tenure which admits of its deterioration in value from causes 
 of this kind. 
 
 And l confess I do not see why the same principles do not 
 apply to property in ferries and bridges to a considerable, if not 
 to the whole extent. Ancient ferries held by prescriptive title, 
 if there be any such in this commonwealth—which may be 
 doubted, as it is well known that the government originally as- 
 
185 
 
 sumed the right to establish and regulate them, either by the di¬ 
 rect act of the legislature, or by the power delegated to courts of 
 sessions or towns, and therefore their title may be found on 
 record—ancient ferries held by individuals may be subject to 
 the rules of the common law, qualified by the usages, and the 
 general legislative provisions of this commonwealth, or of the 
 antecedent governments. Certainly the proprietors may main¬ 
 tain their rights against individuals who invade them without au¬ 
 thority, by the application of those rules. 
 
 By the common law, if there be an ancient ferry and another 
 be set up near to it, so that its profits be diminished, an action 
 will lie for damages, and probably also the use of the new fer¬ 
 ry may be restrained by injunction from chancery. 
 
 I imagine the mere fact of diminution of toll to the ancient 
 ferry would not prove the new ferry to be a nuisance, if it were 
 set up under license of the government. It must in a positive 
 sense be near to the old ferry, and not merely so near as to draw 
 away some of the custom ; for that may happen if the ferries 
 are five miles apart. This is the doctrine of the books, though 
 it is sometimes held, that if the new ferry only be so near as to 
 produce the injury, it is a nuisance. This latter doctrine cer¬ 
 tainly could never have been received in this country. Ferries 
 were first established to accommodate the inhabitants, who were 
 generally settled on the shores of bays or creeks, or on the 
 banks of rivers. They were connected with roads leading to 
 some market town, and settlers in the interior were obliged 
 often to go by circuitous routes in order to cross a river, or 
 other water obstruction, by a ferry. As the population in¬ 
 creased in the country, new and more direct routes would be 
 explored to the sea-ports, and they would come to the river sev¬ 
 eral miles above or below the ferry. A new ferry or a bridge 
 in the line of the new route would be demanded for common 
 convenience and necessity, but thereby the profits of the old 
 ferry might be materially diminished. Cannot the public au¬ 
 thorities establish such a necessary accommodation without 
 making compensation for the loss ? I think the answer must be 
 in the affirmative. 
 
 24 
 
186 
 
 I have seen no case which denies this right, but several which 
 recognise the principle. The case of Chadwick v. The Pro¬ 
 prietors of Haverhill Bridge, does not contradict it. Chad¬ 
 wick’s ferry, as stated in the account of the case given by 
 Mr. Dane in his Abridgment, was ancient; the bridge was 
 built within forty rods. Upon Chadwick’s representation to 
 the legislature, provision was made for his indemnity by coni' 
 missioners. He preferred an action at common law, which was 
 submitted to reference, and an indemnity was awarded to him. 
 There was no decision of the Court, but it may be inferred that 
 the action was considered as rightly brought. As that is the 
 only case to be found on our judicial records, it is unfortunate 
 there was no discussion of principles. All we can know is, that 
 by the erection of the bridge, the ferry was entirely destroyed, 
 and that upon such a question it was intimated by the Court, 
 that a party so situated had a right to his trial by jury. Wheth¬ 
 er the nearness of the bridge to the ferry, and the consequent 
 abolition of the ferry, was not the material fact on which the 
 cause turned, does not appear, or whether, if the bridge had 
 been authorized a mile above or below the ferry instead of forty 
 rods, an indemnity would have been thought necessary, cannot 
 be ascertained. At most, the case is authority only for a de¬ 
 cision, that if a bridge be built by license of the legislature with¬ 
 in forty rods of an ancient ferry over the same river, the pro¬ 
 prietor of the latter is entitled to indemnity. 
 
 In the case of Tripp v. Frank, the plaintiff was lessee of the 
 corporation of Kingston upon Hull, of a ferry which the corpo¬ 
 ration held by prescription, between Hull and Barton, on the 
 opposite coast, at the distance of seven miles. The defendant 
 carried persons at several times in his own boat from Hull to 
 Barrow, which is two miles lower down the Humber than Bar¬ 
 ton. The court held that the action could not be sustained, un¬ 
 less the object of the passenger was to get to Barton by the 
 way of Barrow, and so the transportation by the defendant was 
 in fraud of the ferry. 
 
 This case, though it recognises the general principle of the 
 common law in regard to ferries, yet is pregnant with qualifica¬ 
 tions which are exceedingly important in the consideration of 
 
187 
 
 this subject. It is stated in the case, that there was no other 
 ferry on the Lincolnshire coast upon the river Humber; conse¬ 
 quently all who would pass from Hull to the other side of the 
 river for a great distance, would be obliged to cross this ferry, 
 unless private persons should accommodate them with a pas¬ 
 sage in their boats. Of course such accommodation would 
 materially affect the profits of the ferry ; but it was held unrea¬ 
 sonable to require that persons going to Barrow should be 
 obliged to land at Barton and go from thence two miles by land 
 down the river to Barrow. For the same reason it must have 
 been held, that persons might be transported from Barrow to 
 Hull, without going to Barton to take the ferry there. The 
 plaintiff’s right of ferry exclusive was only betwixt Hull and 
 ' Barton. Hull is a place of great business, with a population of 
 27,000. Barton lias a population of 6000, and Barrow some¬ 
 what short of 2000. Between the latter place and Hull there 
 must necessarily be great intercourse, Hull being a great mar¬ 
 ket town. 
 
 Upon this principle, the transportation of persons from 
 Boston to Cambridge, either at Cambridge Port or at Lechmere 
 Point, would be no infringement of the right of the ferry be¬ 
 tween Boston and Charlestown, and consequently the grant of 
 the bridges in these several places could not be questioned 
 on the ground of interference with their right. 
 
 I should further infer, that a ferry from the southerly part 
 of Charlestown to Barton’s point in Boston, might have been 
 established without any right in the proprietors of the old ferry 
 to complain, because there is a grant of a ferry or the ferry 
 then existing, between Charlestown and Boston, which was 
 practically limited from Charlestown to the northerly part of 
 Boston. 
 
 The case here commented on turned principally upon the 
 question put to counsel, whether the lessee of the corporation 
 was obliged to carry any passenger to Barrow; and upon its 
 being answered in the negative, the court said the right was 
 commensurate with the obligation. So in the case supposed, 
 it is clear that the owners of the ferry could not be obliged to 
 carry persons to West Boston, and therefore they had no right 
 to toll from persons going there. 
 
188 
 
 If it should be said that this case recognises an exclusive 
 right in the corporation of Hull to transport persons from one 
 side of the river to the other through the whole extent of the 
 two opposite towns of Hull and Barton, and that the right of the 
 college was therefore exclusive between Charlestown and Bos¬ 
 ton, I should say they proved their exclusive right by prescrip¬ 
 tion and usage, and the right of the college depends upon the 
 words of their grant, which words are not exclusive ; and that 
 Barton’s point, at the time of the grant to the college, was as 
 distinct from Boston, as contemplated by the colonial govern¬ 
 ment, as Barrow is from Barton ; it being the circumstances of 
 the places and the distance, not the mere fact that they were 
 distinct towns, which governed the decision. 
 
 And the same qualifications of ferry rights were adopted on 
 a more general scale, in a case in the exchequer in the year 
 1659. There was an ancient ferry by prescription at Bran¬ 
 ford in Middlesex, and the defendant had usually in his boat 
 ferried over persons about three quarters of a mile from the old 
 ferry on the Thames, to the prejudice of the plaintiff’s common 
 ferry ; and the suit w r as to suppress the new ferry. The court 
 dismissed the bill, saying it came too near a monopoly and re¬ 
 strained trade. The reporter, Hardres, subjoins a query, but it is 
 difficult to ascertain whether he disputed the principle, or the 
 application of it to that particular case. He cites 22 H. 6, to 
 support his query. On looking at the case, it does not appear 
 to contradict this decision, for it is laid down by two judges ar¬ 
 guendo, that a new market or ferry set up near an old one, 
 whereby its customary profits are reduced, would be a nui¬ 
 sance ; which is not disputed. Whether a distance of three 
 quarters of a mile would be beyond the rights of the old ferry or 
 not, does not appear. 
 
 I infer from these cases and others cited in the argument, 
 that it is not the mere diminution of profits occasioned by a new 
 ferry, which constitutes it a nuisance to the old, but to produce 
 this effect, the new one must be established within the range of 
 the exclusive right of the old one, which is to be settled by 
 proof of use in the case of a prescriptive right, and by the 
 grant, where one exists ; and that such rights, being in deroga- 
 
189 
 
 tion of the common right of the public, must be construed strict¬ 
 ly. Now it is true, that until the year 1785 there was but one 
 ferry between Charlestown and Boston ; and that all passengers 
 to and from these towns used that ferry ; so that if the college 
 rested upon prescription for the proof of its right, they may 
 have had some claim to the exclusion of any other ferry or 
 right of transportation, as was the case of Chadwick’s ferry, 
 and the ferry between Hull and Barton. But deriving their 
 right under a grant from the government, which is not exclusive 
 in its terms, they are limited to the rights conferred by the 
 grant. 
 
 But it is said, that if the ferry right is restricted to the ferry- 
 ways, it is of no value, for the value of the franchise depends 
 upon tolls, and these, upon passengers, and if another ferry 
 could be set up along side of theirs, or a bridge more especially, 
 their franchise is destroyed. 
 
 And it must be confessed, such is the consequence of the 
 doctrine I have advanced, if it cannot be limited by some sound 
 rational principle, consistent with the public right of providing 
 accommodation for the citizen, and the private rights of the cor¬ 
 poration under their grant. I think I can discern such a prin¬ 
 ciple, and it is one which, in my mind, influences and determines 
 the case in reference to the second ground of the argument, 
 which is founded on the supposed violation of the constitution 
 of the United States. 
 
 I do not think that any such property is established in the col¬ 
 lege, as is contemplated in the 10th article of the declaration of 
 rights and protected from public appropriation without provision 
 for indemnity. The actual property is only in the loll which is * 
 earned on the bridge, and in the franchise of the bridge, which is 
 the right to obstruct the navigable water, and to take toll of those 
 who pass over. An act of the legislature requiring the toll taken to 
 be paid into the public treasury, or that the bridge itself should be 
 taken to the use of the public, or that it should be open for public 
 use without any toll, would come within the terms of that article. 
 But an act which only consequentially injures it, would not. Still, 
 
 1 think, without regard to that article, by the very principles of 
 the constitution, and the nature of our government, the legisla- 
 
190 
 
 ture are prohibited from doing other acts injurious to the proper¬ 
 ty of the subject, and that the judicial power would be bound to 
 protect the subject by declaring such acts void. Suppose, for 
 instance, the legislature should grant the same ferry to another, 
 prohibiting the use of it by the first grantee ; there would be no 
 pretence that this would be an appropriation to public use, and 
 yet the second grant would be void, for the courts would de¬ 
 clare, that the public, having parted with their right, had nothing 
 to grant. This would be decided upon the principles of the 
 common law, as we find them applied to the grants of the king. 
 2 Bl. Com. 37 ; 2 Rol. Abr. 191, Prerog. U, pi. 2. Or, if 
 the legislature should reduce the toll, no power to do it hav¬ 
 ing been reserved in the grant, the toll could nevertheless 
 be recovered in an action at common law, on the ground that 
 the act of the legislature, was an unwarrantable interference with 
 private property,'a violation of their own contract or grant. 
 Suppose the ferry granted for a term of years, and by another 
 act it was made to terminate in a less time ; the ferry would 
 nevertheless be upheld by the law, during the term of the 
 grant, upon the same ground, that the legislature had no right 
 thus to interfere with private property, or to impair the obliga¬ 
 tion of their own contract. 
 
 This principle has been practically applied by the legislature 
 itself in many instances. In some cases the legislature, in 
 the grant itself, has reserved the right of declaring a forfeiture 
 upon the breach of conditions, which otherwise could only be 
 done by a court of law ; in others, they have reserved the right 
 of regulating or reducing the toll after a certain number of 
 years. These provisions show the sense of the country and of 
 the successive legislatures, that grants from the public to indi¬ 
 viduals convey rights which are not to be judged of and vacated 
 by the grantor, unless the grant itself retains such power; if it 
 does, then it is by consent of those who accept such grants. 
 
 Another thing seems to me to appertain to grants from the 
 public, as well as individuals ; which is, that notwithstanding it 
 is said in the books they are to be construed strictly, and in ca¬ 
 ses of doubtful construction, in favour of the public, yet the con¬ 
 struction is to be reasonable and consistent with its manifest 
 
191 
 
 purposes and intent. It may be true, as is stated in some of 
 the English books, that nothing is to be held to pass by impli¬ 
 cation only, as may be the case in private grants ; but yet the 
 just and equitable principle, that whatever is necessary to the 
 profitable use of the thing granted, shall be considered as inhe¬ 
 rent in the grant, will apply as well to the public, being grantor, 
 as to a citizen. If the public should grant the right to cut tim¬ 
 ber on public lands, without providing in the grant the means of 
 ingress or egress over other public lands, could it be maintained 
 that the grantee would be a trespasser in passing over such 
 lands necessarily, in order to get at or draw out his timber ? 
 
 If the doctrine of the common law in relation to grants from 
 the king should be otherwise, I think it would not be applied to 
 a grant from the United States or the commonwealth. It would 
 be unreasonable and savour strongly of partiality for the govern¬ 
 ment in its contests with citizens. I admit, that where the 
 grant of the public is clear and explicit as to the thing grant¬ 
 ed, and there are general words which may by implication carry 
 other things if the grant had been from one citizen to another, 
 on the legal maxim that the words are to be taken most strongly 
 against the grantor, the English rule, that nothing shall pass by 
 implication, may apply. But as to the inherent qualities of a 
 grant, and the construction of it in relation to the thing clearly 
 granted and its necessary attributes, I cannot but think the rule 
 is the same for public and private grants. 
 
 Now when the government grants a ferry or any other fran¬ 
 chise, it unquestionably intends to grant the undisturbed use of 
 it, so far as respects any acts of their own or of any persons 
 acting under their authority. The very grant itself contains an 
 implied contract or covenant to this effect. It is the very es¬ 
 sence of the obligation. Now admitting that the grant of the 
 government to the college gave no exclusive right of transporta¬ 
 tion of passengers &tc. over Charles river between Charlestown 
 and Boston, yet I think it gave the free and uninterrupted right 
 of receiving toll from all persons who would, in the usual course 
 of travel, cross that ferry, and that the government contracted 
 not to divert the passengers into any other route, unless the 
 public convenience and necessity should require it; and when 
 
192 
 
 that should happen, that they would establish the new route, so 
 as to do the least possible injury to the pre-existing right; but 
 in doing this, if it were necessary to destroy the old ferry or 
 materially and essentially to diminish its value, compensation 
 should be made. As, for instance, should they determine that 
 another ferry should be established within ten or twenty rods of 
 the old one, and in consequence the profits of the old one should 
 be reduced one half, it seems to me indemnity should be made, 
 and if it were not, the proprietors of the old ferry might main¬ 
 tain an action for damages ; but if it should happen that the 
 new accommodation itself caused an increase of travel, so that 
 the old ferry should receive its usual custom and profits, not¬ 
 withstanding the establishment of the new one, there would be 
 no ground of action, because there would be no injury : and 
 there being no exclusive right to all the ferrying across the river, 
 there would be nothing to complain of. 
 
 This appears to me a'very reasonable doctrine; but I confess 
 I am not able to adduce any authorities in support of it. I 
 ground it on the principles of our government and constitution, 
 and on the immutable principles of justice, which ought to bind 
 governments as well as people. 
 
 It leaves to the government the right of determining what the 
 public good requires, and gives security to the citizen against 
 unequal contributions to that object. It maintains the faith of 
 government in its contracts with and grants to its subjects, with¬ 
 out restraining the proper use of power in making improve¬ 
 ments, which change of times and circumstances may require. 
 It does justice to the public and the citizen. 
 
 If it be said, that a compensation, founded upon the actual 
 state of profits when the franchise is impaired, is not complete 
 indemnity, because the proprietors have a right to calculate 
 upon future increased profits, I answer, that actual and not 
 speculative loss is the rule of damages upon a breach of con¬ 
 tract between man and man, and that all the grantee can rea¬ 
 sonably calculate upon is an indemnity for actual loss occasion¬ 
 ed by a public improvement. It is upon this principle, I pre¬ 
 sume, that the legislature, when they granted authority to build 
 the bridge at the place where the ferry had been kept, found it 
 
193 
 
 necessary to make provision for indemnity to Harvard College; 
 for thereby the ferry was destroyed, and this might have been 
 considered an appropriation of the franchise belonging to the 
 college to the public use. Had no provision been made satis¬ 
 factory to the college, they could have maintained their action 
 against the proprietors of the bridge, notwithstanding the license 
 given by the government. The bridge would have been a nui¬ 
 sance, and if jurisdiction over nuisances had then existed, as 
 now by virtue of the late act, this same process might have 
 been maintained. So if the location of the bridge had been au¬ 
 thorized at any other place, within the range of the ferry right 
 as used, so that the travel would have been necessarily diverted, 
 essentially diminishing the profits of the ferry, though this might 
 not be an appropriation of the college franchise to public use, 
 but only an injury consequential to the exercise of a right, yet 
 there would be a remedy, because it would be a violation of the 
 implied contract contained in the grant, that their franchise 
 should not be disturbed or diminished in value, even for the 
 public good, without making them whole ; and in order to come 
 to this conclusion, it is not necessary to suppose an exclusive 
 right to transportation between Charlestown and Boston, but 
 only an implied stipulation on the part of the government, that 
 they will grant no other similar right, to the necessary and es¬ 
 sential prejudice of the pre-existing grant. 
 
 Now it is perfectly within the reason of this principle, that 
 another ferry or bridge might be rgranted between Cambridge 
 and Boston, either from Lechmere Point or Cambridge Port 
 to Barton’s point, without making any compensation to the pro¬ 
 prietors of the ferry, because it was not even by implication 
 covenanted that no such grant should be made ; for the utmost 
 limits within which such covenant could be inferred are Charles¬ 
 town and Boston. Cambridge and Boston are therefore excluded. 
 So that to whatever extent the travel to Charlestown square, and 
 so over the ferry to the northerly part of Boston, might be divert¬ 
 ed by means of a bridge or ferry from any part of Cambridge to 
 Boston, I think there could be no just ground of complaint. Such 
 was the opinion of the legislature in regard to the claim of rights 
 on the part of the proprietors of Charles river bridge when the 
 
 25 
 
194 
 
 grants of West Boston bridge and of Canal bridge were made ; 
 therefore, when they made provision for an extension of the 
 time of Charles river bridge in the act incorporating West Bos¬ 
 ton bridge, it ought to be considered, according to the terms of 
 the grant itself, that it was not yielded as a matter of right, as 
 compensation for an injury, but only as a gratuity. As such 
 however, being founded upon an acknowledgment of a merito¬ 
 rious consideration, it is to have the same construction and ef¬ 
 fect as if granted as a matter of right. 
 
 It follows from this course of reasoning, to be my opinion, 
 that such were the rights of the proprietors of the ferry, that an 
 act passed in the year 1785, authorizing the erection of a 
 bridge from Charlestown to Boston in the line of the present 
 Warren bridge, having the effect, which would have been inevi¬ 
 table, of rendering the ferry wholly useless, would have been 
 void, as impairing-the obligation of a contract, without a proper 
 provision for indemnity. I think that granting a free bridge 
 any where within the range of the ferry right, without compen¬ 
 sation, would be void upon this principle, because it would ab¬ 
 solutely destroy the franchise of the ferry. And so the estab¬ 
 lishing a ferry or bridge at a less toll than was enjoyed by the 
 ferry, because the effect would be the same. The remedy by 
 action would give damages proportionate to the injury, and upon 
 a bill in equity it would not be necessary to abate the bridge as 
 a nuisance, if the damage was not so great as to require such a 
 procedure. 
 
 This long discussion of the rights of the ferry may seem in¬ 
 appropriate, when I declare that I am not satisfied that such 
 rights, whatever they may be, have been transferred by the col¬ 
 lege to the plaintiffs. On this point I concur with my brothers 
 Wilde and Morion, who have expressed themselves fully upon 
 it. But as the same reasoning will apply to the rights of the 
 plaintiffs derived from the act of the legislature under which 
 they erected the bridge, there is no need of repetition. 
 
 In considering this question I shall confine myself to the act 
 itself, as the origin of the plaintiffs’ right, taking the 8th section 
 of the act of 1791, incorporating the proprietors of West Bos¬ 
 ton bridge, as a part of it, so that the franchise should be taken 
 
195 
 
 to be for seventy years, instead of forty, as provided by the first 
 act, the legislature of that year having in effect determined that 
 it was reasonable that their charter should continue so long. 
 
 There is a very remarkable omission of any enacting 
 clause in the statute of 1784 declaring any purpose for which 
 the corporation was created. In the title of the act, and in 
 the preamble to the first section, can be found the intention of 
 the legislature. There is a difference in the proposed object of 
 the incorporation as it appears expressed in the title and in the 
 preamble. It is not common to recur to the title for an ex¬ 
 planation of the act, though it is sometimes done ; the pream¬ 
 ble used to be called the key to the statute, but these keys 
 have of late been omitted. Still, however, it is fair to consider 
 this preamble as an enacting clause, for the sake of giving effi¬ 
 cacy to a statute which created important rights, and which has 
 frequently since been recognised as such by successive legis¬ 
 latures. 
 
 The words of the preamble are, “ Believing the erecting of 
 a bridge over Charles river in the place ivhere the ferry be¬ 
 tween Boston and Charlestown is now kept, will be of great 
 public utility, and Thomas Russell esquire and others having 
 petitioned this court for an act of incorporation to empower them 
 to build said bridge,” therefore, &c. Section 1. creates a cor¬ 
 poration with the name of “ The Proprietors of Charles river 
 bridge.” Sect. 2. authorizes certain of the proprietors to call 
 a meeting, for the making of by-laws, &c. Sect. 3. establishes 
 the rate of toll, and limits the grant to forty years after the 
 opening of the bridge. Sect. 4. prescribes the manner in which 
 the bridge shall be built. Sect. 5. provides the annuity of 
 200Z. to Harvard College, and that the bridge shall revert to 
 and be the property of the commonwealth, saving to the col¬ 
 lege a reasonable and annual compensation, for the annual in¬ 
 come of the ferry, which they might have received had not the 
 bridge been erected. Sect. 6. gives three years for the build¬ 
 ing of the bridge. 
 
 The act is entitled, “ An act for incorporating certain persons 
 for the purpose of building a bridge over Charles river be¬ 
 tween Boston and Charlestown,” &c. 
 
196 
 
 Had there been an enacting clause in these words, without 
 any provisions in the act tending to restrain their sense, there 
 might have been room to contend that the proprietors were 
 authorized to place their bridge any where between the two 
 towns, and from thence might be inferred an intent on the part 
 of the legislature to grant an exclusive right; but the preamble 
 which comes after the title, and so ought to be considered as 
 explanatory of the general words in the title, and especially as 
 it professes to set forth the cause and the object of the grant, 
 limits the position of the bridge to the place where “ the ferry 
 between Boston and Charlestown is now kept; ” so that no 
 authority was given to obstruct the river by a bridge in any 
 other place between the two towns. 
 
 There is nothing in any part of the statute, from which an 
 exclusive right to any thing beyond the limits of the bridge can 
 be inferred. It is simply the grant of a license to build a 
 bridge in the place prescribed, with the right to take toll from 
 all persons and property which should pass over it during the 
 continuance of the grant. 
 
 The legislature had the supreme control of all other parts of 
 the river, so that any obstruction to vessels and boats other 
 than that caused by a bridge extending across on the line of 
 the ferry, would have been a public nuisance which any one 
 might remove. 
 
 Further right might be granted by the legislature to obstruct the 
 river by wharves or bridges, so that the erection of them would 
 not be deemed public nuisances. The Warren bridge, there¬ 
 fore, built under the act of 1827, is not a public nuisance, for 
 it is authorized by the sovereign power of the state to whose 
 control the public waters belong. 
 
 But an erection which is not a public nuisance because it is 
 authorized by the public, may be to the injury of private per¬ 
 sons or corporations, and so become a private nuisance ; as at 
 the common law, a ferry granted by the king which is to the 
 prejudice of an ancient ferry held by prescription, or a market 
 which interferes with a pre-existing market. Franchises so 
 granted will be vacated, or the proprietor of those which may 
 be thus injured may maintain his action against the disturber, 
 
197 
 
 notwithstanding he holds the patent of the king from whom 
 such franchises are held to flow; and this, although there should 
 be no express saving of pre-existing rights. For it is held, 
 that although such patents usually are upon condition express, 
 that they shall be of no injury to any other person, lta quod 
 non sit ad nocumentum, &c. yet that condition is implied, if not 
 expressed. 2 Inst. 406 ; 2 Saund. 172. And this must be 
 on the principle, that the contract created by the grant cannot 
 be annulled or impaired by any act of the grantor; who is in 
 such cases the king, as representing by his prerogative the pub¬ 
 lic, in the same manner that our legislature does. 
 
 Now it appears to me, that this just and equitable principle 
 is applicable to grants made by our legislature, and public faith 
 and honour require that it should be so considered. 
 
 The legislature grant a township of land, and afterwards 
 make another grant of the same land ; this latter would be 
 void, as before shown. So if they make a second grant of the 
 same franchise. And by the constitution of the United States, 
 they not only cannot annul, repeal or destroy their grant or con¬ 
 tract, but they cannot impair its force or obligation. 
 
 Now what is the contract made by the public, by its agent, 
 the legislature, with the proprietors of Charles river bridge ? 
 
 1. They shall have a bridge for seventy years across Charles 
 river, in the ■place where the ferry between Boston and Charles¬ 
 town is now kept. 
 
 2. They shall receive during that term a toll fixed in the 
 grant, from all passengers, carriages, &c, which go over their 
 bridge. 
 
 At the time of making this grant there was a ferry, over 
 which all persons were carried who had occasion to pass be¬ 
 tween Boston and Charlestown. 
 
 It must have been understood when the bridge was opened 
 for travel, and the ferry ceased, that these passengers would pass 
 over the bridge and pay their toll there. This toll was the con¬ 
 sideration on which the proprietors undertook to build the 
 bridge, and to pay the annuity provided in the act for Harvard 
 College. Could the legislature consistently with their grant 
 have the next year granted another bridge parallel with the 
 
198 
 
 first, and opened it to public travel free of toll ? The answer 
 must be in the negative ; unless they re-imbursed all the expense 
 incurred; for this would be in effect to resume their grant, 
 which it is agreed they could not do. In the first grant they 
 give a right to toll from all persons who should pass the bridge, 
 and persons going to and from Boston and Charlestown would 
 pass the bridge and pay toll. But they afterwards provide 
 means of transportation for the same persons, free of toll, and 
 the necessary consequence is, that the first bridge is deserted. 
 Now it seems to me, that by this the obligation of their con¬ 
 tract is impaired, for that obligation is, that they will do no act 
 whereby prejudice shall come to the first grantees. But here 
 it will be said, that the public convenience may require the es¬ 
 tablishment of a free bridge; that the people are poor and 
 cannot afford to pay toll ; that the legislature is the judge of 
 what the public interest requires, and it is their duty to provide 
 for it. To all this I agree ; but then I say it only varies the 
 quality of the contract. The grant being of the bridge with 
 the right to transport those who have occasion to go to Boston 
 or Charlestown, the contract of the government is, that this 
 right shall not be disturbed or impaired, unless public necessity 
 demand, and if it shall demand, the grantees shall be indem¬ 
 nified. 
 
 Such a contract as this, is founded upon the principles of 
 our constitution, as well as of 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. 
 
 To prevent misconception, I will add, that 1 apply this rea¬ 
 soning only to cases which come clearly within the contract 
 which results from the grant. The grant relates only to a 
 bridge between Boston and Charlestown, and there is no im¬ 
 plied covenant or agreement that there shall not be another 
 bridge between any other town and Boston ; and if by reason 
 of such other bridge the travel over Charles river bridge should 
 be diminished and its toll reduced, the loss would be consequen¬ 
 tial upon the exercise of a public right not in any degree con¬ 
 trolled or restrained by the prior grant. 
 
199 
 
 But let us look at the act incorporating the proprietors of 
 Warren bridge, and see whether it does or does not impair the 
 obligation of the contract with the proprietors of Charles river 
 bridge. 
 
 That contract I have stated to be, that they should continue 
 a corporation for seventy years, with the right to take toll from 
 all persons, Sic. who should pass over their bridge to and from 
 Boston and Charlestown, and that the grantors will do nothing 
 to impair this right or diminish the value of it, unless the pub¬ 
 lic convenience or necessity should require, and if such ne¬ 
 cessity arose, the grantees should be indemnified. 
 
 The act of 1827 authorizes the building of a bridge over 
 Charles river between Charlestown and Boston, beginning at 
 or near Harris’s wharf in Charlestown, and ending upon cer¬ 
 tain new-made land in Boston : and the bridge is actually erect¬ 
 ed within from ten or fifteen rods of Charles river bridge on 
 the Charlestown side, and about fifty rods on the Boston side. 
 It receives the travel from Charlestown square, which before 
 this act discharged itself by one avenue only, over Charles 
 river bridge, and it conveys the passenger in a direct line to 
 the market place in Boston, which was a principal object of 
 travellers over Charles river bridge. The necessary and un¬ 
 avoidable consequence is, the taking from Charles river bridge 
 a large portion of its toll, and giving it to the proprietors of 
 Warren bridge to re-imburse them for the expense of erecting 
 their bridge. It is an admitted fact, that from one half to two 
 thirds of the toll of Charles river bridge has been withdrawn. 
 
 There is nothing in the act which bears a semblance of in¬ 
 demnity to the proprietors of Charles river bridge, but the 
 reduction of the annuity to the university ; but this can have 
 no effect, for, in the first place, it falls vastly short of indemnifi¬ 
 cation, and then the government, as contractor, would have no 
 right to be its own measurer of damage. 
 
 I make no account of the offers made by the proprietors of 
 Charles river bridge to make such alterations, additions and 
 improvements as might comport with the supposed demands of 
 public convenience or necessity. It was certainly within the 
 discretion of the legislature to accept or reject their offers. If 
 
200 
 
 they came to the determination that the new bridge was neces¬ 
 sary, or that the safety or convenience of the people required 
 it, they might build it at the public expense, or authorize indi¬ 
 viduals or a corporation to do it. Not, however, in my opinion, 
 without an indemnity agreed upon, or some constitutional pro¬ 
 vision to assess it, because it directly trenches upon the income 
 and profits of the old bridge, and not merely as a consequence 
 of alterations or improvements not in themselves affected by 
 any previous contract. 
 
 By this course of reasoning my mind is brought to the con¬ 
 clusion, that the act incorporating the proprietors of Warren 
 bridge, in so far as it authorizes, and by its necessary operation 
 occasions the diversion of travel and toll from Charles river 
 bridge, is void, and that the proprietors of the latter bridge are 
 entitled to relief. In what form that relief should be awarded 
 it is immaterial now to determine, as no decree for relief can 
 be passed. There will be a decree against the plaintiffs, in or¬ 
 der that they may avail themselves of the right secured by the 
 constitution and laws, of a revision by the Supreme Court of 
 the United States, where it is highly proper that this question, 
 depending, as I think it does, mainly upon the constitution of 
 the United States, should be ultimately decided. 
 
 I am aware of objections that may be made to the opinion 
 which I have adopted, that its tendency would be to check and 
 impede public improvements, because the public will not en¬ 
 courage them if they should be subject to the expense of re¬ 
 imbursing those who suffer. But this evil cannot be very ex¬ 
 tensive .within the limitations which I have suggested ; certainly 
 less than if it is to be understood, that the legislature, having 
 made a grant of a franchise, may directly or indirectly resume 
 or impair it- 
 
 It will be said also, that it is contrary to the policy and prac¬ 
 tice of the commonwealth to make reparation for losses occasion¬ 
 ed by turnpike roads, bridges, canals, &c. except for property 
 actually taken for their use. I should answer that no case like 
 the one before us has occurred. In those which most resem¬ 
 ble it, such as West Boston bridge, Chelsea bridge, Beverly 
 bridge, Haverhill bridge, &c. an indemnity probably satisfactory 
 to the parties, has been provided for. 
 
201 
 
 There are others of a strong character which have been left 
 without indemnity; the most extraordinary of which is the 
 case of South Boston bridge, which has been entirely destroyed 
 by the free bridge from South Boston to Boston. There is 
 reason to believe, however, that the persons principally interest¬ 
 ed, acquiesced in, if they did not assist to procure the grant of 
 the free bridge. At any rate, there does not appear to have 
 been any remonstrance to the legislature by the proprietors of 
 South Boston bridge. 
 
 There is another feature of the act of 1827, which may 
 render its validity, in opposition to the rights of the proprietors 
 of Charles river bridge, at least doubtful. It provides, that the 
 bridge shall be surrendered to and become the property of the 
 commonwealth in six years from the time of its being opened, 
 or sooner if before that time the proprietors shall have been 
 re-imbursed the expense of building it, with interest at five per 
 cent. The real effect of this provision is, that the bridge 
 is built for the commonwealth, the proprietors merely advancing 
 the expense, which is to be repaid out of the tolls collected. 
 When this purpose shall be answered, the bridge becomes pub¬ 
 lic property, without any provision for any toll, so that unless 
 some further act of legislation takes place, it will be a free 
 bridge. Now a free bridge so near to the old bridge, it must 
 be obvious to every one, will entirely destroy all beneficial use 
 of the franchise to the proprietors of Charles river bridge. 
 And as there cannot exist a public necessity to give free pas¬ 
 sage to all people from Charlestown to Boston, such a bridge 
 cannot but be a violation of the contract with those proprietors; 
 which certainly is, that nothing shall be done by the govern¬ 
 ment to impair that contract, but from necessity. 
 
 But suppose the legislature had the right to establish a free 
 bridge, deeming it to be for the public interest and conven¬ 
 ience ; then it seems to me, that such a measure would be a 
 virtual assumption of the franchise, and, without compensation, 
 would be void on the principles of both constitutions. 
 
 On the other hand, suppose the toll will be continued as 
 long as the charter of the old bridge endures ; then if it shall 
 be paid into the public treasury as a revenue to the state, this 
 
 26 
 
202 
 
 revenue would arise from the very act which' causes the loss and 
 injury to the proprietors of Charles river bridge. 
 
 "I do not, however, rest my opinion on this extraordinary 
 
 provision, because if the act is held valid on the other grounds, 
 this may be cured by future acts of legislation ; or it may be 
 the subject of future adjudication. 
 
 I think this question of the necessity of indemnifying the 
 proprietors of Charles river bridge has been prejudiced by the 
 well known fact, that the profits of the bridge have been great 
 beyond the example of any similar institution in this country. It 
 seems to r me that if the legislature of 1787, which is one year 
 after the building of the bridge, when its success could be only 
 conjectural, and the experiment of its durability was scarcely 
 tried, had incorporated this company to build the Warren 
 bridge, without indemnifying the proprietors of the old bridge, 
 the opinion of its injustice would have been universal. 
 
 I cannot see that the principle can be affected by any change 
 of circumstances. Every thing w.as prospective, and forty 
 years at first, and afterwards seventy, were thought to be a rea¬ 
 sonable limitation of the grant, and the question of loss and 
 gain on both sides was merged in this compact. 
 
 If the legislature were to grant a township of land without 
 any reservation, at ten cents per acre, and the purchaser should, 
 by reason of a sudden settlement of the surrounding country, 
 or on account of its favourable position for trade, or its remark¬ 
 able commodiousness for mills, find it was worth as many dol¬ 
 lars, the most ignorant man in the country would stare if the 
 legislature should undertake to resume or curtail its grants. 
 
 Besides-, notwithstanding the original proprietors and their es¬ 
 tates may have been vastly more than indemnified, it is to be 
 considered, that the property in a bridge is a marketable com¬ 
 modity ; that it finds its money value, as other commodities 
 do ; and that the supposed pledged faith of the government in 
 its continuance for the specified time, forms an essential ingre¬ 
 dient in the value. It may be presumed, therefore, that many 
 of the present holders are purchasers at a price which will 
 enable them to obtain nothing more than the common rate of 
 merest. A deduction of two thirds of the value of the capi- 
 
203 
 
 tal therefore must be a most serious injury. And then again, 
 probably creditors have taken it at the market price, or heirs 
 have taken their portions and lost their right to a new division of 
 the estate. All will see then, that the great profits which have 
 been derived, can have influence upon the question of right. 
 
 Bill dismissed.* 
 
 See Enfield Toll Bridge Co. v. Connecticut River Co. 7 Connect. R. 28. 
 

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