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

is “a grant made at this day;” it is pleadable, it is produced from the record, and the Court can notice it ea officio.

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

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

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

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So far as my general views of the origin and nature of the federal constitution and government may be peculiar, that peculiarity will be carried of course into my opinions on constitutional questions. There are none which can arise, in which it is more important to attend carefully to the reasons of one’s judgment, than in those where the prohibitions on the states come under consideration; those which have arisen have been found the most difficult to settle, because they involve not only the question of the powers granted to congress, and those reserved to the states, but on account of the nature and variety of the prohibitions and exceptions. In the case of Briscoe v. The Bank of Kentucky, ante 116, 117, I gave my views of the three classes of prohibitions, in the first clause of the tenth section of the first article of the constitution, which in their terms are absolute, operating without any exception, to annul all state power over the prohibited subjects.

The next clause of the same section contains prohibitions of a different kind. “No state shall, without the consent of congress, lay imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett proceeds of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the congress. No state shall, without the consent of congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

It will be perceived that these prohibitions apply to two distinct classes of cases; in those embraced in the first sentence, it is not only requisite that congress should consent to state laws laying duties and imposts on imports and exports, but they are made subject to its revision and control. In the second class, nothing more is required than the consent of congress to the specified acts or laws of a state, giving no power whatever over them, after such consent has been given. There is also one particular in which compacts and agreements between one state and another, or with a foreign power, stand on a peculiar footing; all the other cases to which the prohibition applies, embrace those subjects on which there is a grant of power to congress to legislate, or which have a bearing on those powers; as to lay duties and imposts, regulate commerce, declare war, &c. Whereas the sole power of congress in relation to such agreements or compacts, is to assent or dissent, which is the only limitation or restriction which the constitution has imposed, provided they are not treaties, alliances, or confederations, which are absolutely prohibited by

[Poole et al. v. The Lessee of Fleeger et al.]

the first clause of the section, and cannot be validated by any consent of congress.

As the compact between Kentucky and Tennessee does not come within this prohibition, and is one merely of boundary between the two states, the subject matter is not within the jurisdiction of congress, any farther than that it is subject to its consent, which, once given, the constitution is functus officio in relation to its controlling power over its terms or validity. The effect of such consent is, that thenceforth the compact has the same force as if it had been made between states who are not confederated, or between the United States and a foreign state, by a treaty of boundary: or as if there had been no restraining provision in the constitution. Its validity does not depend on any recognition or admission in or by the constitution, that states may make such compacts with the consent of congress; the power existed in the states, in the plenitude of their sovereignty, by original inherent right; they imposed a single restraint upon it, but did not make any surrender of their right, or consent to impair it to any greater extent. Like all other powers not granted to the United States, or prohibited to the states by the constitution, it is reserved to them, subject only to such restraints as it imposes, leaving its exercise free and unlimited in all other respects, without any auxiliary by any implied recognition or admission of the existence of the general power, consequent upon the particular limitation.

Herein consists the peculiarity of my reasons for affirming the judgment of the circuit court in this case; fully concurring with the opinion delivered, as to the original power of the states to make compacts of boundary, as well as to the effect of the prohibition, being “a single limitation or restriction” upon the power. Wide 11 Pet. 209. I can give it no other effect by implication, without impairing the great principle on which the reserved powers of the states rest. Though the result, in this case, would be the same, whether the right of making compacts of boundary is original in the states, or exists by the admissions of the constitution, it might have an important bearing on other questions and cases, depending on the same general principle, as to the granting and restraining power which established that instrument. If it is considered as the source of the powers which are reserved to the states, it necessarily admits that its origin is from a power paramount to theirs, and limits them to the exercise of such as it recognises or tacitly admits, by imposing limited restraints. This is a principle which, once conceded, will destroy all harmony between the state and federal governments, by resorting to implication and construction to ascertain their respective powers, instead of adopting the definite rule furnished by the tenth amendment. That refers to the constitution for the ascertainment of the specific powers granted to the United States, or prohibited to the states, as the certain and fixed standard by which to measure them; and then, by express declaration, reserves all other powers to the states, or the peo[Poole et al. v. The Lessee of Fleeger et al.] ple thereof. The grant in the one case, or the prohibition in the other, must therefore be shown, or the given power remains with the state, in its original plenitude, not only independent of any power of the constitution, but paramount to it, as a portion of sovereignty attached to the soil and territory, in its original integrity. By adhering to this rule, there is found a marked line of separation between the powers of the two governments, the metes and bounds of which are visible; so that the portion of power separated from the state by its cession, can be as easily defined as its cession of a portion of its territory by known boundaries, a reference to which will bring every constitutional question to an unerring test. I have therefore considered those which have arisen in this case, as involving a general principle applicable to all restrictions on states. Though a narrower view would suffice to settle the questions presented upon this compact, or any compact between the states of this Union: yet, when we consider that the power of a state to make an agreement or compact, with a foreign power, is put on the same footing as one between two or more states, the necessity of an adherence to principle is the more apparent. It is a settled principle of this Court, that the boundaries of the United States, as fixed by the treaty of peace in 1783, were the boundaries of the several states, 12 Wh. 524; from which it follows, that on a contest between a state and a foreign power respecting the boundary between them, the state has the same power over the subject matter, as if the contest was with another state. It must then be ascertained, what is the source of that power, its extent by original right, how far it is restricted by the constitution; and when a compact of boundary is made with the consent of congress, whether their legislative power can be exercised over it to any extent. When this is done, it must then be inquired, how far the judicial power has been extended over such compacts by the constitution, and in controversies arising under them, what are judicial questions on which courts can act, as distinguished from political questions, which must be referred to the parties to the compact. In this view of the subject, I am disposed to take broader ground than is done in the opinion of the Court, and think it necessary to examine whether the powers of a state depend in any degree on the recognition or admission in the constitution, as the construction put upon it by those who framed or adopted it. This is a sound principle, when applied to grants of power by paramount authority, to a body subordinate to it, which can act only under the authority of the grant; and fairly applies to the powers of the federal government, which is a mere creature of the constitution. Such is the established rule of this Court, where there is an express exception of a particular case, in which any given power shall not be exercised, that it may be exercised in cases not within the exception; otherwise the exception would be useless, and the words of the constitution become unmeaning.

[Poole et al. v. The Lessee of Fleeger et al.]

But the principle is radically different, when it is applied to a provision of the constitution, excepting a particular case from the exercise of state legislation, or containing a prohibition that a state law shall not be passed on any given subject, or shall not have the effect of doing what is prohibited; in such cases, there results no implication of power in other cases, for a most obvious reason:—That states do not derive their powers from the constitution, but by their own inherent reserved right can act on all subjects which have not been delegated to the federal government, or prohibited to states. This distinction necessarily arises from the whole language of the constitution and amendments, and is expressly recognised in the most solemn adjudications of this Court. “The government, then, of the United States, can claim no powers which are not granted to it by the constitution; and the powers, actually granted, must be such as are expressly given, or given by necessary implication;” 1 Wh. 326; Hunter v. Martin. “The powers retained by the states, proceed from the people of the several states, and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument;” 4 Wh. 193. So where there is an exception to the exercise of the power of congress, as in the first clause of the ninth section of the first article of the constitution. “The migration or importation of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by congress prior to the year 1808. The whole object of the exception is to preserve the power to those states which might be disposed to exercise it, and its language seems to convey this idea to the Court unequivocally. It is an exception to the power to regulate commerce, and manifests, clearly, the intention to continue the pre-existing right of the state to admit or exclude for a limited period;” 9 Wh. 206, 7, 216. So when a state is prohibited from imposing duties on imports, except what may be absolutely necessary for executing its inspection laws. “This tax is an exception to the prohibition on the states to lay duties on imports and exports. The exception was made, because the tax would otherwise have been within the prohibition;” 12 Wh. 436. “If it be a rule of interpretation to which all assent, that the exception of a particular thing, from general words, proves, that in the opinion of the lawgiver, the thing excepted would be within the general clause, had the exception not been made, we know no reason why this general rule should not be as applicable to the constitution as other instruments;” 12 Wh. 438. In applying this rule to deeds, the language of this Court is strong and clear. “It is observable that the granting part of this deed begins by excepting, from its operation, all the lots, &c., which are within the exception. The words are, doth grant, &c., except as is hereinafter excepted, all those hereafter mentioned and described lots, &c. In order, therefore, to ascertain what is granted, we must first ascertain what is within the exception; for whatever

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