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[Charles River Bridge v. Warren Bridge et al.] of the federal government, are held by no other or stronger tenure, than the land or franchises of a citizen or corporation; both rights were inherent in the people of a state, who have made grants by their representatives, in a convention directly by their original power, or in a legislative act, made by the authority delegated in their state constitution. But the grants thus made are as binding on the people and the state, as if made in a convention; they are the contracts of the state, the obligation of which the people have declared, shall not be impaired by the authority of a state; it shall not “pass any law,” which shall have such object in view, or produce such effect. An act of a convention is the supreme law of the state; an act of the legislature is a law subordinate; both, however, are laws of the state of binding authority, unless repugnant to that law which the state has, by its own voluntary act, in the plenitude of its sovereignty, made paramount to both, and declared that its judges, “shall be bound thereby,” any thing to the contrary notwithstanding. Each state has made the obligation of contracts a part of the constitution, thus saving and confirming them under the sanction of its own authority; no act, therefore, can violate the sanctity of contracts, which cannot annul the whole constitution, for it is a fundamental principle of law, that whatever is saved and preserved by a statute, has the same obligation as the act itself. This principle has been taken from the magna charta of England, and carried into the great charter of our rights of property. By magna charta, ch. 9, and 7 Rich. II. it is enacted, “that the citizens of London shall enjoy all their liberties, notwithstanding any statute to the contrary. By this act, the city may claim liberties by prescription, charter, or parliament, notwithstanding any statute made before; 4 Co. Inst. 250, 53; 2 Co. Inst. 20, 1; 5 D. C. D. 20, London, M. T. P. Harg. Law, T. 66, 67. The constitution goes further, by saving, preserving and confirming the obligation of contracts; and notwithstanding any law passed after its adoption; and this confirmation being by the supreme law of the land, makes a contract as inviolable, even by a supreme law of a state, as the constitution itself. From the beginning of the revolution, the people of the colonies clung to magna charta, and their charters from the crown; their violation was a continued subject of complaint. Wide 1 Jour. Cong. 27, 8; 40, 1; 60, 108, 143, 154, 167, 178; one of the grievances set forth in the declaration of independence is, “For taking away our charters,” &c. One of the causes which led to the English revolution was, “They have also invaded the privileges, and seized on the charters of most of those towns that have a right to be represented by their burgesses in parliament; and have secured surrenders to be made of them, by which the magistrates in them have delivered up all their rights and privileges, to be disposed of at the pleasure of those evil counsellors,” &c. 10 Journ. Commons, 2, b. In the language of congress,

[Charles River Bridge v. Warren Bridge et al.]

“The legislative, executive, and judging powers, are all moved by the nod of a minister. Privileges and immunities last no longer than his smiles. When he frowns their feeble forms dissolve;” I Journ. 59, 60. “Without incurring or being charged with a forfeiture of their rights, without being heard, without being tried, without law, without justice, by an act of parliament, their charter is destroyed, their liberties violated, their constitution and form of government changed; and all this upon no better pretence, than because in one of their towns, a trespass was committed on some merchandise said to belong to one of the companies, and because the ministry were of opinion, that such high political regulations, were necessary to compel due subordination, and obedience to their mandates;” 1 Journ. 41.

Such were the principles of our ancestors in both revolutions; they are consecrated in the constitution framed by the fathers of our government, in terms intended to protect the rights and property of the people, by prohibiting to every state the passage of any law which would be obnoxious to such imputations on the character of American legislation. The reason for this provision was, that the transcendent power of parliament devolved on the several states by the revolution; 4 Wh. 651; so that there was no power, by which a state could be prevented from revoking all public grants of property or franchise, as parliament could do; Harg. L. T. 60, 61; 4 Wh. 643, 51. The people of the 'states renounced this power; and as an assurance that that they would not exercise it; or if they should do so inadvertently, that any law to that effect should be void; the constitution embraces all grants, charters and other contracts affecting property, places them beyond all legislative control, and imposes on this Court the duty of protecting them from legislative violation; 6 Cr. 136; 4 Wh. 625. In the same sovereign capacity, in which the people of each state adopted the constitution, they pledged their faith that the sanctity of the obligation of contracts should be inviolable; and to insure its performance, created a competent judicial power, whom they made the final arbiter between their laws and the constitution, in all cases in which there was an alleged collision between them. These principles have been too often, and too solemnly affirmed by this Court, to make any detail of their reasoning or opinions necessary.

In Fletcher v. Peck, they were applied to a grant of hand by a state to individuals, made by the authority of a state law, which was afterwards repealed; 6 Cr. 127; in New Jersey v. Wilson, to an immunity from taxation granted to a tribe of Indians; 7 Cr. 164; in Terrett v. Taylor to a religious society; 9 Cr. 43, &c.; in Dartmouth College v. Woodward to a literary corporation; 4 Wh. 636. In all these cases state laws which violated the grants and charters which conferred private or corporate rights, were held void under the prohibition in the constitution; the Court holding that as it contained no exception in terms, none could be made by construction, [Charles River Bridge v. Warren Bridge et al.] the language being clear of all ambiguity, it extended to corporations as well as individuals; 8 Wh. 480 to 490, passim. But while the Court repudiates all constructive earceptions to the prohibition, it equally repudiates its application to constructive contracts; it will preserve the immunity from taxation, when it is granted in terms as in 7 Cr. 164; yet they will not raise an immunity by implication, “where there is no express contract;” 4 Pet. 563. There can be no difficulty in understanding this clause of the constitution, its language is plain and the terms well defined by the rules of law, the difficulty arises by the attempts made to interpolate exceptions on one hand, so as to withdraw contracts from its operation; and on the other hand, to imply one contract from another, to make each implied contract the parent of another, and then endeavour to infuse them all into the constitution, as the contract contained in the grant or charter in question. If human ingenuity can be thus exerted for either purpose with success, no one can understand the constitution as it is; we must wait till it has been made by such construction, what such expounders may think it ought to have been, before we can assign to its provisions any determinate meaning. In the rejection of both constructions, and following the decisions of this Court, my judgment is conclusively formed; that the grants of property of franchise, privilege, or immunity, to a natural or artificial person, are alike confirmed by the constitution; and that the plantiffs are entitled to the relief prayed in their bill, if they have otherwise made out a proper case. In tracing their right to its origin, they found it on a grant to Harvard college, by the general court, or colonial council, in 1640, of the ferry between Boston and Charlestown, which had belonged to the colony from its first settlement. In 1637, the governor and treasurer were authorized to lease this ferry for three years, at forty pounds a year, under which authority they made such a lease, and gave an exclusive right of ferry between the two towns, though they were not authorized to do more than lease the ferry. The lease expired in 1640, when the ferry reverted to the colony, and was granted to the college by no other description than “the ferry between Boston and Charlestown,” which the plaintiffs contend was a grant in perpetuity of the exclusive right of ferriage between the two towns, and from any points on Charles river, at the one or other. All the judges in the court below, as well as the counsel on both sides agree, that the common law as to ferries was adopted and prevails in Massachusetts; this part of the case then must depend on what were the rules and principles of that law, in their application to such a grant at the time it was made. It is an admitted principle, that the king by his prerogative was vested with the right of soil and jurisdiction over the territory within which he constituted by his charter the colonial government; their

[Charles River Bridge v. Warren Bridge et al.]

grants had the same validity as his, and must be construed by the same rules which regulate prerogative grants. Wide 1 Pick. 182, &c.

As the king, by his charter put the colonial government in his place, they held the right in and over the arms of the sea, the navigable rivers, and the land in the colony, for the benefit of the people of the colony, as a public trust, not as a private estate; the people of the colony had the right of fishing, navigating and passing freely in and over the public waters, subject to such grants of franchise or property as may have been made, or which should be made in future. But as any grant of a private right in or over public property, is necessarily an abridgment of the public right to the extent of such grants, the law looks on them with great watchfulness, and has prescribed rules for their construction, founded on a proper regard to the general interest.

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

This is the reason why the king has a prerogative in the construction of his grants, by which they are taken most strongly in his favour and against the grantee, because they take from the public whatever is given to an individual; whereas the grants of private persons are taken by a contrary rule, because the public right is not affected by them. From a very early period, it was the policy of the law of England to protect the public domain from the improvident, or illegal exercise of the royal prerogative in making grants, and to secure to pious and charitable institutions, the benefit of donations made directly to them or for their use, by rules of construction appropriate to each kind of grants, which were a part of the common law. These rules were affirmed by statutes in order to give them a more imposing obligation; these statutes were passed in 1323, 24. By the 17 Ed. II. st. 1, ch. 15, it is enacted that “When our lord the king giveth or granteth land or a manor, with the appurtenances, without he make express mention in his deed or writing, of knights’ fees, advowsons of churches and dowers when they fall belongin to such manor or land, them at this day the king reserveth to himself such fees, advowsons and dowers; albeit that among other persons it

[Charles River Bridge v. Warren Bridge et al.]

hath been observed otherwise;” 1 Ruff. 182, 3. By the 17 Ed. II. called the statute of templars, it was declared, that grants and donations for charitable purposes, should be held; “So always that the godly and worthy will of the foresaid givers be observed, performed and always religiously executed as aforesaid;” Keble. St. 86, 7. Subsequent statutes have prescribed the same rule, whereby it has ever since been a fundamental principle of the law of charities, that the will of the donor should be the standard of construction in relation to all such gifts or grants; 8 Co. 131, b; 10 Co. 34, b; 3 Co. 3, b; 7 Co. 13, a putting them on the footing of a will, in which the intention of the testator prevails over the legal interpretation of the words.

Both classes of cases are exceptions to the general rules of construing private grants. They rest, however, on the strongest grounds of reason, justice, and sound policy, applicable alike to England and this country. In cases of charities the rule has been most liberally applied by this Court, as it has in England in the construction of statutes and grants, in favour of donations to them; 4 Wh. 31, &c. 9 Cr. 43,331; 3 Pet. 140, 480; 9 Wh. 455, 64; 2 Pet. 580, 85; so of dedications of property to public use, or the use of a town; 12 Wh. 582; 6 Pet. 436, 7; 10 Pet. 712, 13; the rules of which are essentially different from those which relate to grants from one person to another, or laws for private benefit. In cases of grants by the king in virtue of his prerogative, the rule prescribed by the statute of prerogative has ever been a fundamental one in England, “that nothing of prerogative can pass without express and determinate words;” Hob. 243; Hard. 309, 10; Pl. 336, 7. In 1830, it was laid down in the house of lords as clear and settled law, . that the king’s grants shall be taken most strongly against the grantee, though the rule was otherwise as to private grants; 5 Bligh. P. C. 315, 16; this rule was never questioned in England, and has been adopted in all the states as a part of their common law.

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

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