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borders, and peace depends upon the maintenance in

good faith of those compromises of the Constitution upon

which the Union is founded. It is fortunate for the country

that the good sense, the generous feeling, and the deep-

rooted attachment of the people of the non-slaveholding

States to the Union and to their fellow-citizens of the same

blood in the South have given so strong and impressive a

tone to the sentiments entertained against the proceedings

of the misguided persons who have engaged in these

unconstitutional and wicked attempts, and especially

against the emissaries from foreign parts who have dared

to interfere in this matter, as to authorize the hope that

those attempts will no longer be persisted in. But if these

expressions of the public will shall not be sufficient to

effect so desirable a result, not a doubt can be entertained

that the nonslaveholding States, so far from countenancing

the slightest interference with the constitutional rights of

the South, will be prompt to exercise their authority in

suppressing so far as in them lies whatever is calculated to

produce this evil.

In leaving the care of other branches of this interest-

ing subject to the State authorities, to whom they properly

belong, it is nevertheless proper for Congress to take such

measures as will prevent the Post-Office Department,

which was designed to foster an amicable intercourse and

correspondence between all the members of the Confed-

eracy, from being used as an instrument of an opposite

character. The General Government, to which the great

trust is confided of preserving inviolate the relations cre-

ated among the States by the Constitution, is especially

bound to avoid in its own action anything that may disturb

them. I would therefore call the special attention of

Congress to the subject, and respectfully suggest the pro-

priety of passing such a law as will prohibit, under severe

penalties, the circulation in the Southern States, through

the mail, of incendiary publications intended to instigate

the slaves to insurrection.

I felt it to be my duty in the first message which I com-

municated to Congress to urge upon its attention the pro-

priety of amending that part of the Constitution which

provides for the election of the President and the Vice-

President of the United States. The leading object which I

had in view was the adoption of some new provisions

which would secure to the people the performance of this

high duty without any intermediate agency. In my annual

communications since I have enforced the same views,

from a sincere conviction that the best interests of the

country would be promoted by their adoption. If the sub-

ject were an ordinary one, I should have regarded the fail-

ure of Congress to act upon it as an indication of their

judgment that the disadvantages which belong to the pre-

sent system were not so great as those which would result

from any attainable substitute that had been submitted to

their consideration. Recollecting, however, that proposi-

tions to introduce a new feature in our fundamental laws

can not be too patiently examined, and ought not to be

received with favor until the great body of the people are

thoroughly impressed with their necessity and value as a

remedy for real evils, I feel that in renewing the recom-

mendation I have heretofore made on this subject I am not

transcending the bounds of a just deference to the sense of

Congress or to the disposition of the people. However

much we may differ in the choice of the measures which

should guide the administration of the Government, there

can be but little doubt in the minds of those who are really

friendly to the republican features of our system that one

of its most important securities consists in the separation

of the legislative and executive powers at the same time

that each is held responsible to the great source of author-

ity, which is acknowledged to be supreme, in the will of the

people constitutionally expressed. My reflection and expe-

rience satisfy me that the framers of the Constitution,

although they were anxious to mark this feature as a settled

and fixed principle in the structure of the Government, did

not adopt all the precautions that were necessary to secure

its practical observance, and that we can not be said to

have carried into complete effect their intentions until the

evils which arise from this organic defect are remedied.

Considering the great extent of our Confederacy, the

rapid increase of its population, and the diversity of their

interests and pursuits, it can not be disguised that the con-

tingency by which one branch of the Legislature is to form

itself into an electoral college can not become one of ordi-

nary occurrence without producing incalculable mischief.

What was intended as the medicine of the Constitution in

extreme cases can not be frequently used without chang-

ing its character and sooner or later producing incurable

disorder.

Every election by the House of Representatives is cal-

culated to lessen the force of that security which is derived

from the distinct and separate character of the legislative

and executive functions, and while it exposes each to temp-

tations adverse to their efficiency as organs of the Consti-

tution and laws, its tendency will be to unite both in

resisting the will of the people, and thus give a direction to

the Government antirepublican and dangerous. All history

tells us that a free people should be watchful or delegated

power, and should never acquiesce in a practice which will

diminish their control over it. This obligation, so universal

in its application to all the principles of a republic, is pecu-

liarly so in ours, where the formation of parties founded on

sectional interests is so much fostered by the extent of our

territory. These interests, represented by candidates for

the Presidency, are constantly prone, in the zeal of party

and selfish objects, to generate influences unmindful of

the general good and forgetful of the restraints which the

642 ERA 4: Expansion and Reform

great body of the people would enforce if they were in no

contingency to lose the right of expressing their will. The

experience of our country from the formation of the Gov-

ernment to the present day demonstrates that the people

can not too soon adopt some stronger safeguard for their

right to elect the highest officers known to the Constitu-

tion than is contained in that sacred instrument as it now

stands.

It is my duty to call the particular attention of Con-

gress to the present condition of the District of Columbia.

From whatever cause the great depression has arisen

which now exists in the pecuniary concerns of this District,

it is proper that its situation should be fully understood and

such relief or remedies provided as are consistent with the

powers of Congress. I earnestly recommend the extension

of every political right to the citizens of this District which

their true interests require, and which does not conflict

with the provisions of the Constitution. It is believed that

the laws for the government of the District require revisal

and amendment, and that much good may be done by

modifying the penal code so as to give uniformity to its

provisions.

Your attention is also invited to the defects which exist

in the judicial system of the United States. As at present

organized the States of the Union derive unequal advan-

tages from the Federal judiciary, which have been so often

pointed out that I deem it unnecessary to repeat them

here. It is hoped that the present Congress will extend to

all the States that equality in respect to the benefits of the

laws of the Union which can only be secured by the uni-

formity and efficiency of the judicial system.

With these observations on the topics of general inter-

est which are deemed worthy of your consideration, I leave

them to your care, trusting that the legislative measures

they call for will be met as the wants and the best interests

of our beloved country demand.

Source:

James D. Richardson, ed. A Compilation of the Messages and

Papers of the Presidents, 1789–1897. Washington, D.C.:

Government Printing Office, 1896–99.

Alexis de Tocqueville,

Democracy in America, 1835

Democracy in America

is a book written by Frenchman Alexis

de Tocqueville to explain democracy, which he sees as an

inevitable development in Europe, to his compatriots. His

analysis of the American political system is considered a clas-

sic of political literature. Most influential is his disquisition on

what he calls “the absolute sovereignty of the majority.” The

introduction to that chapter is reproduced here. The book was

drawn from de Tocqueville’s observations made during a

working tour of the United States to study the penal system.

The two-volume French edition was first published in 1835.

The book’s popularity and de Tocqueville’s insights have en-

dured. The first English translation was published between

1835 and 1840; three different English translations were pub-

lished again in 2000. The following excerpts are from the

1961 publication.

________________________

_______________________

Introductory Chapter

Amongst the novel objects that attracted my attention dur-

ing my stay in the United States, nothing struck me more

forcibly than the general equality of conditions. I readily

discovered the prodigious influence which this primary

fact exercises on the whole course of society, by giving a

certain direction to public opinion, and a certain tenor to

the laws; by imparting new maxims to the governing pow-

ers, and peculiar habits to the governed.

I speedily perceived that the influence of this fact

extends far beyond the political character and the laws of

the country, and that it has no less empire over civil soci-

ety than over the Government; it creates opinions, engen-

ders sentiments, suggests the ordinary practices of life, and

modifies whatever it does not produce.

The more I advanced in the study of American society,

the more I perceived that the equality of conditions is the

fundamental fact from which all others seem to be derived,

and the central point at which all my observations con-

stantly terminated.

* * *

Chapter IV. The Principle of the Sovereignty of the

People in America

It predominates over the whole of society in America.—

Application made of this principle by the Americans even

before their Revolution.—Development given to it by that

Revolution.—Gradual and irresistible extension of the

elective qualification.

Whenever the political laws of the United States are to

be discussed, it is with the doctrine of the sovereignty of

the people that we must begin.

The principle of the sovereignty of the people, which

is to be found, more or less, at the bottom of almost all

human institutions, generally remains concealed from

view. It is obeyed without being recognised, or if for a

moment it be brought to light, it is hastily cast back into

the gloom of the sanctuary.

“The will of the nation” is one of those expressions

which have been most profusely abused by the wily and

the despotic of every age. To the eyes of some it has been

represented by the venal suffrages of a few of the satellites

of power; to others, by the votes of a timid or an interested

Territorial Expansion, Political and Economic Developments, and International Relations 643

minority; and some have even discovered it in the silence

of a people, on the supposition that the fact of submission

established the right of command.

In America, the principle of the sovereignty of the

people is not either barren or concealed, as it is with some

other nations; it is recognised by the customs and pro-

claimed by the laws; it spreads freely, and arrives without

impediment at its most remote consequences. If there be

a country in the world where the doctrine of the

sovereignty of the people can be fairly appreciated, where

it can be studied in its application to the affairs of society,

and where its dangers and its advantages may be foreseen,

that country is assuredly America.

I have already observed that, from their origin, the

sovereignty of the people was the fundamental principle of

the greater number of British colonies in America. It was

far, however, from then exercising as much influence on

the government of society as it now does.

* * *

The American revolution broke out, and the doctrine of

the sovereignty of the people, which had been nurtured in

the townships and municipalities, took possession of the

State: every class was enlisted in its cause; battles were

fought, and victories obtained for it; until it became the

law of laws.

A no less rapid change was effected in the interior of

society, where the law of descent completed the abolition

of local influences.

At the very time when this consequence of the laws

and of the revolution was apparent to every eye, victory

was irrevocably pronounced in favour of the democratic

cause. All power was, in fact, in its hands, and resistance

was no longer possible. The higher orders submitted with-

out a murmur and without a struggle to an evil which was

thenceforth inevitable. The ordinary fate of falling powers

awaited them; each of their several members followed his

own interest; and as it was impossible to wring the power

from the hands of a people which they did not detest suf-

ficiently to brave, their only aim was to secure its good-will

at any price. The most democratic laws were consequently

voted by the very men whose interests they impaired: and

thus, although the higher classes did not excite the pas-

sions of the people against their order, they accelerated the

triumph of the new state of things; so that, by a singular

change, the democratic impulse was found to be most irre-

sistible in the very States where the aristocracy had the

firmest hold.

Chapter XV. Power of the Majority in the United

States, and Its Consequences

* * *

The very essence of democratic government consists in

the absolute sovereignty of the majority; for there is noth-

ing in democratic states which is capable of resisting it.

Most of the American Constitutions have sought to

increase this natural strength of the majority by artificial

means. The legislature is, of all political institutions, the

one which is most easily swayed by the wishes of the

majority. The Americans determined that the members of

the legislature should be elected by the people immedi-

ately, and for a very brief term, in order to subject them,

not only to the general convictions, but even to the daily

passions of their constituents. The members of both

Houses are taken from the same class in society, and are

nominated in the same manner; so that the modifications

of the legislative bodies are almost as rapid and quite as

irresistible as those of a single assembly. It is to a legisla-

ture thus constituted, that almost all the authority of the

government has been entrusted.But whilst the law

increased the strength of those authorities which of them-

selves were strong, it enfeebled more and more those

which were naturally weak. It deprived the representatives

of the executive of all stability and independence; and by

subjecting them completely to the caprices of the legisla-

ture, it robbed them of the slender influence which the

nature of a democratic government might have allowed

them to retain. In several States, the judicial power was

also submitted to the elective discretion of the majority;

and in all of them its existence was made to depend on the

pleasure of the legislative authority, since the representa-

tives were empowered annually to regulate the stipend of

the judges.

Custom, however, has done even more than law. A

proceeding which will in the end set all the guarantees of

representative government at naught, is becoming more

and more general in the United States: it frequently hap-

pens that the electors, who choose a delegate, point out a

certain line of conduct to him, and impose upon him a cer-

tain number of positive obligations which he is pledged to

fulfil. With the exception of the tumult, this comes to the

same thing as if the majority of the populace held its delib-

erations in the market-place.

Several other circumstances concur in rendering the

power of the majority in America not only preponderant,

but irresistible. The moral authority of the majority is

partly based upon the notion, that there is more intelli-

gence and more wisdom in a great number of men col-

lected together than in a single individual, and that the

quantity of legislators is more important than their qual-

ity. The theory of equality is in fact applied to the intel-

lect of man; and human pride is thus assailed in its last

retreat, by a doctrine which the minority hesitate to

admit, and in which they very slowly concur. Like all

other powers, and perhaps more than all other powers,

644 ERA 4: Expansion and Reform

the authority of the many requires the sanction of time;

at first it enforces obedience by constraint; but its laws

are not respected until they have long been maintained.

The right of governing society, which the majority sup-

poses itself to derive from its superior intelligence, was

introduced into the United States by the first settlers; and

this idea, which would be sufficient of itself to create a

free nation, has now been amalgamated with the manners

of the people, and the minor incidents of social inter-

course.

The French, under the old monarchy, held it for a

maxim, (which is still a fundamental principle of the

English Constitution), that the King could do no wrong;

and if he did do wrong, the blame was imputed to his

advisers. This notion was highly favourable to habits of

obedience; and it enabled the subject to complain of the

law, without ceasing to love and honour the lawgiver. The

Americans entertain the same opinion with respect to the

majority.

The moral power of the majority is founded upon yet

another principle, which is, that the interests of the many

are to be preferred to those of the few. It will readily be

perceived that the respect here professed for the rights of

the majority must naturally increase or diminish according

to the state of parties. When a nation is divided into sev-

eral irreconcilable factions, the privilege of the majority is

often overlooked, because it is intolerable to comply with

its demands.

If there existed in America a class of citizens whom

the legislating majority sought to deprive of exclusive priv-

ileges, which they had possessed for ages, and to bring

down from an elevated station to the level of the ranks

of the multitude, it is probable that the minority would

be less ready to comply with its laws. But as the United

States were colonized by men holding equal rank amongst

themselves, there is as yet no natural or permanent

source of dissension between the interests of its different

inhabitants.

There are certain communities in which the persons

who constitute the minority can never hope to draw over

the majority to their side, because they must then give up

the very point which is at issue between them. Thus, an

aristocracy can never become a majority whilst it retains its

exclusive privileges, and it cannot cede its privileges with-

out ceasing to be an aristocracy.

In the United States, political questions cannot be

taken up in so general and absolute a manner; and all par-

ties are willing to recognize the rights of the majority,

because they all hope to turn those rights to their own

advantage at some future time. The majority therefore in

that country exercises a prodigious actual authority, and a

moral influence which is scarcely less preponderant; no

obstacles exist which can impede, or so much as retard its

progress, or which can induce it to heed the complaints of

those whom it crushes upon its path. This state of things is

fatal in itself and dangerous for the future.

Source:

Alexis de Tocqueville, Democracy in America. Vols. 1 and 2. New

York: Schocken Books, 1961.

Specie Circular of 1836

Circular issued by President Andrew Jackson on July 11, 1836,

requiring the U.S. Treasury to accept only specie (gold or sil-

ver), not paper money, as payment in the sale of public lands.

The circular was intended to protect federal revenues and to

curb high inflation and rampant land speculation in the West.

It resulted in an increased demand for specie that many banks

could not accommodate, which, in turn, caused bank failures,

reduction of credit, and increased unemployment in an eco-

nomic crisis known as the panic of 1837. The circular was

repealed on May 21, 1838.

________________________

_______________________

Circular from the Treasury that gold and silver only

be received in payment for public lands

Communicated to the Senate, December 14, 1836.

Treasury Department, July 11, 1836.

In consequence of complaints which have been made of

frauds speculations, and monopolies, in the purchase of

the public lands, and the aid which is said to be given to

effect these objects by excessive bank credits, and dan-

gerous if not partial facilities, through bank drafts and

bank deposits, and the general evil influence likely, to

result to the public interests, and especially the safety of

the great amount of money in the Treasury, and the

sound condition of the currency of the country, from the

further exchange of the national domain in this manner,

and chiefly for bank credits and paper money, the Presi-

dent of the United States has given directions, and you

are hereby instructed, after the 15th day of August next,

to receive in payment of the public lands nothing except

what is directed by the existing laws, viz.: gold and silver,

and in the proper cases, Virginia land scrip; provided

that, till the 15th of December next, the same indul-

gences heretofore extended as to the kind of money

received, may be continued for any quantity of land not

exceeding 320 acres to each purchaser who is an actual

settler, or bonafide resident in the State where the sales

are made.

In order to insure the faithful execution of these

instructions, all receiver are strictly prohibited from

accepting for land sold, and draft, certificate, or other

Territorial Expansion, Political and Economic Developments, and International Relations 645

evidence of money or deposit, though for specie, unless

signed by the Treasurer of the United States, in confor-

mity to the act of April 24, 1820. And each of those

officers is required to annex to his monthly returns to

this department, the amount of gold and of silver respec-

tively, as well as the bill received under the foregoing

exception; and each deposit bank is required to annex to

every certificate given upon a deposit of money, the pro-

portions of it actually paid in gold, in silver, and in bank-

notes. All former instructions on this subjects, except as

now modified, will be considered as remaining in full

force.

The principal objects of the President, in adopting this

measure, being to repress alleged frauds, and to withhold

any countenance or facilities in the power of the govern-

ment from the monopoly of the public lands in the hands

of speculators and capitalists, to the injury of the actual set-

tlers in the new States, and of emigrants in search of new

homes, as well as to discourage the ruinous extension of

bank issues and bank credits, by which those results are

generally supposed to be promoted, your utmost vigilance

is required, and relied on, to carry this order into complete

execution.

Source:

American State Papers: Documents of the Congress of the United

States in Relation to Public Lands, 1835–37, Vol. 8, p. 910.

Charles River Bridge

v. Warren Bridge, 1837

U.S. Supreme Court decision issued on February 14, 1837,

establishing the principle that legislative grants are to be inter-

preted narrowly and that any ambiguity must be resolved in

favor of the public, not the corporation. The decision modified

the ruling in

Dartmouth College v. Woodward (1819),

which

protected private contracts against legislative inference. Here

the Charles River Bridge Company, which held a state charter

for a toll bridge and claimed monopoly rights, sued to prevent

the Warren Bridge Company from constructing a competing

free bridge. Chief Justice Roger Taney rejected the monopolis-

tic claim because it was not specified in the original charter

and would injure the public welfare.

Two years later, in

Bank of Augusta v. Earle

, 1839, the

Supreme Court established that in the absence of specific state

action to the contrary, a corporation chartered by one state

was presumed to have the right to do business, under interstate

comity, in other states, and a state did have the right to exclude

a corporation by positive action. Chief Justice Roger Taney

also ruled that a corporation did not possess all the U.S. con-

stitutional rights of a natural person.

________________________

_______________________

Mr. Chief Justice Taney delivered the opinion of the

Court.

The questions involved in this case are of the gravest

character, and the Court have given to them the most anx-

ious and deliberate consideration. The value of the right

claimed by the plaintiffs is large in amount; and many per-

sons many no doubt be seriously affected in their pecu-

niary interests by any decision which, the Court may

pronounce; and the questions which have been raised as to

the power of the several states, in relation to the corpora-

tions they have chartered, are pregnant with important

consequences; not only to the individuals who are con-

cerned in the corporate franchises, but to the communities

in which they exist. The Court are fully sensible that it is

their duty, in exercising the high powers conferred on

them by the constitution of the United States, to deal with

these great and extensive interests with the utmost cau-

tion; guarding, as far as they have the power to do so, the

rights of property, and at the same time carefully abstain-

ing from any encroachment on the rights reserved to the

states.

It appears, from the record, that in the year 1650, the

legislature of Massachusetts, granted to the president of

Harvard college “the liberty and power,” to dispose of the

ferry from Charlestown to Boston, by lease or otherwise, in

the behalf and for the behalf of the college: and that, under

that grant, the college continued to hold and keep the ferry

by its lessees or agents, and to receive the profits of it until

1785. In the last mentioned year, a petition was presented

to the legislature, by Thomas Russell and others, stating

the inconvenience of the transportation be ferries, over

Charles river, and the public advantages that would result

from a bridge; and praying to be incorporated for the pur-

pose of erecting a bridge in the place where the ferry

between Boston and Charlestown was then kept. Pursuant

to this petition, the legislature, on the 9th of March, 1785,

passed an act incorporating a company, by the name of

“The Proprietors of the Charles River Bridge,” for the pur-

pose mentioned in the petition. Under this charter the

company were empowered to erect a bridge, in “the place

where the ferry was then kept;” certain tolls were granted,

and the charter was limited to forty years, from the first

opening of the bridge for passengers; and from the time

the toll commenced, until the expiration of this term, the

company were to pay two hundred pounds, annually, to

Harvard college; and at the expiration of the forty years the

bridge was to be the property of the commonwealth; “sav-

ing (as the law expresses it) to the said college or univer-

sity, a reasonable annual compensation, for the annual

income of the ferry, which they might have received had

not the said bridge been erected.”

646 ERA 4: Expansion and Reform

The bridge was accordingly built, and was opened for

passengers on the 17th of June, 1786. In 1792, the charter

was extended to seventy years, from the opening of the

bridge; and at the expiration of that time it was to belong

to the commonwealth. The corporation have regularly paid

to the college the annual sum of two hundred pounds, and

have performed all of the duties imposed on them by the

terms of their charter.

In 1828, the legislature of Massachusetts incorporated

a company by the name of “The Proprietors of the Warren

Bridge,” for the purpose of erecting another bridge over

Charles river. This bridge is only sixteen rods, at its com-

mencement, on the Charlestown side, form the com-

mencement of the bridge of the plaintiffs; and they are

about fifty rods apart at their termination on the Boston

side. The travelers who pass over either bridge, proceed

from Charlestown square, which receives the travel of

many great public roads leading from the country; and the

passengers and travelers who go to and from Boston, used

to pass over the Charles River Bridge, from and through

this square, before the erection of the Warren Bridge.

The Warren Bridge, by the terms of its charter, was

to be surrendered to the state, as soon as the expenses of

the proprietors in building and supporting it should be

reimbursed; but this period was not, in any event, to ex-

ceed six years from the time the company commenced re-

ceiving toll.

When the original bill in this case was filed, the War-

ren Bridge had not been built; and the bill was filed after

the passage of the law, in order to obtain an injunction to

prevent its erection, and for general relief. The bill, among

other things, charged as a ground for relief, that the act for

the erection of the Warren Bridge impaired the obligation

of the contract between the commonwealth and the pro-

prietors of the Charles River Bridge; and was therefore

repugnant to the constitution of the United States. After-

wards, a supplemental bill was filed, stating that the bridge

had then been so far completed, that it had been opened

for travel, and that divers persons had passed over, and

thus avoided the payment of the toll, which would other-

wise have been received by the plaintiffs. The answer to

the supplemental bill admitted that the bridge had been so

far completed, that foot passengers could pass; but denied

that any persons but the workmen and the superinten-

dents had passed over with their consent. In this state of

the pleadings, the cause came on for hearing in the

supreme judicial court for the county of Suffolk, in the

commonwealth of Massachusetts, at November term,

1829; and the court decided that the act incorporating the

Warren Bridge, did not impair the obligation of the con-

tract with the proprietors of the Charles River Bridge, and

dismissed the complainants’ bill: and the case is brought

here by writ of error from that decision. It is, however,

proper to state, that it is understood that the state court

was equally divided upon the question; and that the decree

dismissing the bill upon the ground above stated, was pro-

nounced by a majority of the court, for the purpose of

enabling the complainants to bring the question for deci-

sion before this Court.

In the argument here, it was admitted, that since the

filing of the supplemental bill, a sufficient amount of toll

had been received by the proprietors of the Warren Bridge

to reimburse all their expenses, and that the bridge is now

the property of the state, and has been made a free bridge;

and that the value of the franchise granted to the propri-

etors of the Charles River Bridges; has by this means been

entirely destroyed.

If the complainants deemed these facts material, they

ought to have been brought before the state court, by a

supplemental bill; and this Court, in pronouncing its judg-

ment, cannot regularly notice them. But in the view which

the Court take of this subject, these additional circum-

stances would not in any degree influence their decision.

And as they are conceded to be true, and the case has been

argued on that ground, and the controversy has been for a

long time depending, and all parties desire a final end of it;

and as it is of importance to them, that the principles on

which this Court decide should not be misunderstood; the

case will be treated in the opinion now delivered, as if

these admitted facts were regularly before us.

A good deal of evidence has been offered to show the

nature and extent of the ferry right granted to the college;

and also to show the rights claimed by the proprietors of

the bridges at different times, by virtue of their charter;

and the opinions entertained by committees of the legisla-

ture, and others, upon that subject. But as these circum-

stances do not affect the judgment of this Court, it is

unnecessary to recapitulate them.

The plaintiffs in error insist, mainly, upon two

grounds: 1st. That by virtue of the grant of 1650, Harvard

college was entitled, in perpetuity, to the right of keeping

a ferry between Charlestown and Boston; that this right

was exclusive; and that the legislature had not the power to

establish another ferry on the same line of travel, because

it would infringe the rights of the college; and that these

rights, upon the erection of the bridge in the place of the

ferry, under the charter of 1785, were transferred to, and

became vested in “the proprietors of the Charles River

Bridge;” and that under, and by virtue of this transfer of

the ferry right, the rights of the bridge company were as

exclusive in that line of travel, as the rights of the ferry. 2d.

That independently of the ferry right, the acts of the legis-

lature of Massachusetts of 1785, and 1792, by their true

construction, necessarily implied that the legislature would

not authorize another bridge, and especially a free one, by

the side of this, and placed in the same line of travel,

Territorial Expansion, Political and Economic Developments, and International Relations 647

whereby the franchise granted to the “proprietors of the

Charles River Bridge” should be rendered of no value; and

the plaintiffs in error contend, that the grant of the ferry to

the college, and of the charter to the proprietors of the

bridge, are both contracts on the part of the state; and that

the law authorizing the erection of the Warren Bridge in

1828, impairs the obligation of one or both of these con-

tracts.

It is very clear, that in the form in which this case

comes before us; being a writ of error to a state court; the

plaintiffs in claiming under either of these rights, must

place themselves on the ground of contract, and cannot

support themselves upon the principle, that the law divests

vested rights. It is well settled by the decisions of this

Court, that a state law may be retrospective in its charac-

ter, and may divest vested rights; and yet not violate the

constitution of the United States, unless it also impairs the

obligation of a contract. In 2 Peters, 413; Satterlee v. Math-

ewson; this Court, in speaking of the state law then before

them, and interpreting the article in the constitution of the

United States which forbids the states to pass laws impair-

ing the obligation of contracts, uses the following language.

“It (the state law) is said to be retrospective; be it so. But

retrospective laws which do not impair the obligation of

contracts, or partake of the character of ex post facto laws,

are not condemned or forbidden by any part of that instru-

ment,” (the constitution of the United States). And in

another passage in the same case, the Court say; “the

objection, however, most pressed upon the Court, and

relied upon by the counsel for the plaintiff in error, was,

that the effect of this act was to divest rights which were

vested by law in Satterlee. There is certainly no part of the

constitution of the United States, which applies to a state

law of this description; nor are we aware of any decision of

this, or of any circuit court, which has condemned such a

law upon this ground, provided its effect be not to impair

the obligation of a contract.” The same principles were

reaffirmed in this Court, in the late case of Watson and

others v. Mercer, decided in 1834, 8 Pet. 110; “as to the

first point, (say the Court,) it is clear that this Court has no

right to pronounce an act of the state legislature void, as

contrary to the constitution of the United States, from the

mere fact that it divests antecedent vested rights of prop-

erty. The constitution of the United States does not pro-

hibit the states from passing retrospective laws, generally;

but only ex post facto laws.”

After these solemn decisions of this Court, it is appar-

ent that the plaintiffs in error cannot sustain themselves

here, either upon the ferry right, or the charter to the

bridge; upon the ground that vested rights of property

have been divested by the legislature. And whether they

claim under the ferry right, or the charter to the bridge,

they must show that the title which they claim, was

acquired by contract, and that the terms of that contract,

have been violated by the charter to the Warren Bridge. In

other words, they must show that the state had entered

into a contract with them, or those under whom they

claim, not to establish a free bridge at the place where the

Warren Bridge is erected. Such, and such only, are the

principles upon which the plaintiffs in error can claim

relief in this case.

The nature and extent of the ferry right granted to

Harvard college, in 1650, must depend upon the laws of

Massachusetts; and the character and extent of this right

has been elaborately discussed at the bar. But in the view

which the Court take of the case before them, it is not nec-

essary to express any opinion on these questions. For

assuming that the grant to Harvard college, and the char-

ter to the Bridge company, were both contracts, and that

the ferry right was as extensive and exclusive as the plain-

tiffs contend for; still they cannot enlarge the privileges

granted to the bridge, unless it can be shown, that the

rights of Harvard college in this ferry-have, by assignment,

or in some other way, been transferred to the proprietors

of the Charles River Bridge, and still remain in existence,

vested in them, to the same extent with that in which they

were held and enjoyed by the college before the bridge

was built.

It has been strongly pressed upon the Court, by the

plaintiffs in error, that these rights are still existing, and are

now held by the proprietors of the bridge. If this franchise

still exists, there must be somebody possessed of authority

to use it, and to keep the ferry. Who could now lawfully set

up a ferry where the old one was kept? The bridge was

built in the same place, and its abutments occupied the

landings of the ferry. The transportation of passengers in

boats, from landing to landing, was no longer possible; and

the ferry was as effectually destroyed, as if a convulsion of

nature had made there a passage of dry land. The ferry

then, of necessity, ceased to exist, as soon as the bridge was

erected; and when the ferry itself was destroyed, how can

rights which were incident to it, be supposed to survive?

The exclusive privileges, if they had such, must follow the

fate of the ferry, and can have no legal existence without

it—and if the ferry right had been assigned by the college,

in due and legal form, to the proprietors of the bridge, they

themselves extinguished that right, when they erected the

bridge in its place. It is not supposed by any one, that the

Bridge company have a right to keep a ferry. No such right

is claimed for them, nor can be claimed for them, under

their charter to erect a bridge—and it is difficult to imag-

ine how ferry rights can be held by a corporation, or an

individual, who have no right to keep a ferry. It is clear,

that the incident must follow the fate of the principal, and

the privilege connected with property, cannot survive the

destruction of the property; and if the ferry right in Har-

648 ERA 4: Expansion and Reform

vard college was exclusive, and had been assigned to the

proprietors of the bridge, the privilege of exclusion could

not remain in the hands of their assignees, if those

assignees destroyed the ferry.

But upon what ground can the plaintiffs in error con-

tend that the ferry rights of the college have been trans-

ferred to the proprietors of the bridge? If they have been

thus transferred, it must be by some mode of transfer

known to the law; and the evidence relied on to prove it,

can be pointed out in the record. How was it transferred?

It is not suggested that there ever was, in point of fact, a

deed of conveyance executed by the college to the Bridge

company. Is there any evidence in the record from which

such a conveyance may, upon legal principle, be pre-

sumed? The testimony before the Court, so far from laying

the foundation for such a presumption, repels it in the

most positive terms. The petition to the legislature, in

1785, on which the charter was granted, does not suggest

an assignment, nor any agreement or consent on the part

of the college; and the petitioners do not appear to have

regarded the wishes of that institution, as by any means

necessary to ensure their success. They place their appli-

cation entirely on considerations of public interest and

public convenience, and the superior advantages of a com-

munication across Charles river by a bridge, instead of a

ferry. The legislature, in granting the charter, show, by the

language of the law, that they acted on the principle

assumed by the petitioners. The preamble recites that the

bridge “will be of great public utility;” and that is the only

reason they assign, for passing the law which incorporates

this company. The validity of the charter is not made to

depend on the consent of the college, nor of any assign-

ment or surrender on their part; and the legislature deal

with the subject, as if it were one exclusively within their

own power, and as if the ferry right were not to be trans-

ferred to the Bridge company, but to be extinguished and

they appear to have acted on the principle, that the state

by virtue of its sovereign powers and eminent domain, had

a right to take away the franchise of the ferry; because, in

their judgment, the public interest and convenience would

be better promoted by a bridge in the same place; and

upon that principle they proceed to make a pecuniary

compensation to the college, for the franchise thus taken

away: and as there is an express reservation of a continuing

pecuniary compensation to the college, when the bridge

shall become the property of the state, and no provision

whatever for the restoration of the ferry right, it is evident

that no such right was intended to be reserved or contin-

ued. The ferry, with all its privileges was intended to be

forever at an end, and a compensation in money was given

in lieu of it. The college acquiesced in this arrangement,

and there is proof, in the record, that it was all done with

their consent. Can a deed of assignment to the Bridge

company which would keep alive the ferry rights in their

hands, be presumed under such circumstances? Do not

the petition, the law of incorporation, and the consent of

the college to the pecuniary provision made for it in per-

petuity, all repel the notion of an assignment of its rights to

the Bridge company, and prove that every party to this pro-

ceeding, intended that its franchises, whatever they were,

should be resumed by the state, and be no longer held by

any individual, or corporation? With such evidence before

us, there can be no ground for presuming a conveyance to

the plaintiffs. There was no reason for such a conveyance.

There was every reason against it; and the arrangements

proposed by the charter to the bridge, could not have been

carried into full effect, unless the rights of the ferry were

entirely extinguished.

It is however said, that the payment of the two hun-

dred pounds a year to the college, as provided for in the

law, gives to the proprietors of the bridge an equitable

claim to be treated as the assignees of their interest; and by

substitution, upon chancery principles, to be clothed with

all their rights.

The answer to this argument is obvious. This annual

sum was intended to be paid out of the proceeds of the

tolls, which the company were authorized to collect. The

amount of the tolls, it must be presumed, was graduated

with a view to this encumbrance, as well as to every other

expenditure to which the company might be subjected,

under the provisions of their charter. The tolls were to be

collected from the public, and it was intended that the

expense of the annuity to Harvard college should be borne

by the public; and it is manifest that it was so borne, from

the amount which it is admitted they received, until the

Warren Bridge was erected. Their agreement, therefore,

to pay that sum, can give them no equitable right to be

regarded as the assignees of the college, and certainly can

furnish no foundation for presuming a conveyance; and as

the proprietors of the bridge are neither the legal nor equi-

table assignees of the college, it is not easy to perceive how

the ferry franchise can be invoked in aid of their claims, if

it were even still a subsisting privilege; and had not been

resumed by the state, for the purpose of building a bridge

in its place.

Neither can the extent of the pre-existing ferry right,

whatever it may have been, have any influence upon the

construction of the written charter for the bridge. It does

not, by any means, follow, that because the legislative

power in Massachusetts, in 1650, may have granted to a

justly favored seminary of learning, the exclusive right of

ferry between Boston and Charlestown, they would, in

1785, give the same extensive privilege to another corpo-

ration, who were about to erect a bridge in the same place.

The fact that such a right was granted to the college, can-

not by any sound rule of construction, be used to extend

Territorial Expansion, Political and Economic Developments, and International Relations 649

the privileges of the Bridge company beyond what the

words of the charter naturally and legally import.

Increased population longer experienced in legislation, the

different character of the corporations which owned the

ferry from that which owned the bridge, might well have

induced a change in the policy of the state in this respect;

and as the franchise of the ferry, and that of the bridge, are

different in their nature, and were each established by sep-

arate grants, which have no words to connect the privileges

of the one with the privileges of the other; there is no rule

of legal interpretation, which would authorize the Court to

associate these grants together, and to infer that any privi-

lege was intended to be given to the Bridge company,

merely because it had been conferred on the ferry. The

charter to the Bridge is a written instrument which must

speak for itself, and be interpreted by its own terms.

This brings us to act of the legislature of Mass-

achusetts, of 1785, by which the plaintiffs were incorpo-

rated by the name of “The Proprietors of the Charles River

Bridge;” and it is here, and in the law of 1792, prolonging

their charter, that we must look for the extent and nature

of the franchise conferred upon the plaintiffs.

Much has been said in the argument of the principles

of construction by which this law is to be expounded, and

what undertakings, on the part of the state, may be

implied. The Court think there can be no serious difficulty

on that head. It is the grant of certain franchises by the

public to a private corporation, and in a matter where the

public interest is concerned. The rule of construction in

such cases is well settled, both in England, and by the deci-

sions of our own tribunals. In 2 Barn. & Adol. 793, in the

case of the Proprietors of the Stourbridge Canal against

Wheely and others, the court say, “the canal having been

made under an act of parliament, the rights of the plaintiffs

are derived entirely from that act. This, like many other

cases, is a bargain between a company of adventurers and

the public, the terms of which are expressed in the statute;

and the rule of construction in all such cases, is now fully

established to be this; that any ambiguity in the terms of

the contract, must operate against the adventurers, and in

favor of the public, and the plaintiffs can claim nothing

that is not clearly given them by the act.” And the doctrine

thus laid down in abundantly sustained by the authorities

referred to in this decision. The case itself was as strong a

one, as could well be imagined, for giving to the canal com-

pany, by implication, a right to the tolls they demanded.

Their canal had been used by the defendants, to a very

considerable extent, in transporting large quantities of

coal. The rights of all persons to navigate the canal, were

expressly secured by the act of parliament; so that the

company could not prevent them from using it, and the toll

demanded was admitted to be reasonable. Yet, as they only

used one of the levels of the canal, and did not pass

through the locks; and the statute, in giving the right to

exact toll, had given if for articles which passed “through

any one or more of the locks,” and had said nothing as to

toll for navigating one of the levels; the court held that the

right to demand toll, in the latter case, could not be

implied, and that the company were not entitled to recover

it. This was a fair case for an equitable construction of the

act of incorporation, and for an implied grant; if such a rule

of construction could ever be permitted in a law of that

description. For the canal had been made at the expense

of the company; the defendants had availed themselves of

the fruits of their labors, and used the canal freely and

extensively for their own profit. Still the right to exact toll

could not be implied, because such a privilege was not

found in the charter.

Borrowing, as we have done, our system of jurispru-

dence from the English law; and having adopted, in every

other case, civil and criminals, its rules for the construction

of statutes; is there any thing in our local situation, or in

the nature of our political institutions, which should lead

us to depart from the principle where corporations are

concerned? Are we to apply to acts of incorporation, a rule

of construction differing from that of the English law, and,

by implication, make the terms of a charter in one of the

states, more unfavorable to the public, than upon an act of

parliament, framed in the same words, would be sanc-

tioned in an English court? Can any good reason be

assigned for excepting this particular class of cases from

the operation of the general principle; and for introducing

a new and adverse rule of construction in favor of corpora-

tions, while we adopt and adhere to the rules of construc-

tion known to the English common law, in every other

case, without exception? We think not; and it would pre-

sent a singular spectacle, if, while the courts in England

are restraining, within the strictest limits, the spirit of

monopoly, and exclusive privileges in nature of monopo-

lies, and confining corporations to the privileges plainly

given to them in their charter; the courts of this country

should be found enlarging these privileges by implication;

and construing a statute more unfavorably to the public,

and to the rights of the community, than would be done in

a like case in an English court of justice.

But we are not now left to determine, for the first

time, the rules by which public grants are to be construed

in this country. The subject has already been considered in

this Court; and the rule of construction, above stated, fully

established. In the case of the United States v. Arredondo,

9 Pet. 738, the leading cases upon this subject are collected

together by the learned judge who delivered the opinion of

the Court; and the principle recognized, that in grants by

the public, nothing passes by implication.

The rule is still more clearly and plainly stated in the

case of Jackson v. Lamphire, in 3 Pet. 289. That was a grant

650 ERA 4: Expansion and Reform

of land by the state; and in speaking of this doctrine if

implied covenants in grants by the state, the Court use the

following language, which is strikingly applicable to the

case at bar:—”The only contract made by the state, is the

grant to John Cornelius, his heirs and assigns, of the land

in question. The patent contains no covenant to do, or not

to do any further act in relation to the land; and we do not

feel ourselves at liberty, in this case, to create one by impli-

cation. The state has not, by this act, impaired the force of

the grant; it does not profess or attempt to take the land

from the assigns of Cornelius, and give it to one not claim-

ing under him; neither does the award produce that effect;

the grant remains in full force; the property conveyed is

held by his grantee, and the state asserts no claim to it.”

The same rule of construction is also stated in the

case of Beatty v. The Lessee of Knowles, 4 Pet. 168;

decided in this Court in 1830. In delivering their opinion

in that case, the Court say:— “That a corporation is

strictly limited to the exercise of those powers which are

specially conferred on it, will not be decided. The exercise

of the corporate franchise being restrictive of individual

rights, cannot be extended beyond the letter and spirit of

the act incorporation.”

But the case most analogous to this, and in which the

question came more directly before the Court, is the case

of the Providence Bank v. Billings & Pittmann, 4 Pet. 514;

and which was decided in 1830. In that case, it appeared

that the legislature of Rhode Island had chartered the

bank, in the usual form of such acts of incorporation. The

charter contained no stipulation on the part of the state,

that it would not impose a tax on the bank, nor any reser-

vation of the right to do so. It was silent on this point.

Afterwards, a law was passed, imposing a tax on all banks

in the state; and the right to impose this tax was resisted by

the Providence Bank, upon the ground, that if the state

could impose a tax, it might tax so heavily as to render the

franchise of no value, and destroy the institution; that the

charter was a contract, and that a power which may in

effect destroy the charter is inconsistent with it, and is

impliedly renounced by granting it. But the Court said that

the taxing power was of vital importance, and essential to

the existence of government; and that the relinquishment

of such a power is never to be assumed. And in delivering

the opinion of the Court, the late Chief Justice states the

principle, in the following clear and emphatic language.

Speaking of the taxing power, he says, “as the whole com-

munity is interested in retaining it undiminished, that

community has a right to insist that its abandonment ought

to be presumed, in a case in which the deliberate purpose

of the state to abandon it does not appear.” The case now

before the Court, is, in principle, precisely the same. It is

a charter from a state. The act of incorporation is silent in

relation to the contested power. The argument in favor of

the proprietors of the Charles River Bridge, is the same,

almost in words, with that used by the Providence bank;

that is, that the power claimed by the state, if it exists, may

be so used as to destroy the value of the franchise they

have granted to the corporation. The argument must

receive the same answer; and the fact that the power has

been already exercised so as to destroy the value of the

franchise, cannot in any degree affect the principle. The

existence of the power does not, and cannot depend upon

the circumstance of its having been exercised or not.

It may, perhaps, be said, that in the case of the Provi-

dence Bank, this Court were speaking of the taxing power;

which is of vital importance to the very existence of every

government. But the object and end of all government is

to promote the happiness and prosperity of the community

by which it is established; and it can never be assumed,

that the government intended to diminish its power of

accomplishing the end for which it was created. And in a

country like ours, free, active and enterprising, continually

advancing in numbers and wealth; new channels of com-

munication are daily found necessary, both for travel and

trade; and are essential to the comfort, convenience, and

prosperity of the people. A state ought never to be pre-

sumed to surrender this power, because, like the taxing

power, the whole community have an interest in preserv-

ing it undiminished. And when a corporation alleges, that

a state has surrendered for seventy years, its power of

improvement and public accommodation, in a great and

important line of travel, along which a vast number of its

citizens must daily pass; the community have a right to

insist, in the language of this Court above quoted, “that its

abandonment ought not to be presumed, in a case, in

which the deliberate purpose of the state to abandon it

does not appear.” The continued existence of a govern-

ment would be of no great value, if by implications and

presumptions, it was disarmed of the powers necessary to

accomplish the ends of its creation; and the functions it

was designed to perform, transferred to the hands of priv-

ileged corporations. The rule of construction announced

by the Court, was not confined to the taxing power; nor is

it so limited in the opinion delivered. On the contrary, it

was distinctly placed on the ground that the interests of the

community were concerned in preserving, undiminished,

the power then in question; and whenever any power of

the state is said to be surrendered or diminished, whether

it be the taxing power or any other affecting the public

interest, the same principle applies, and the rule of con-

struction must be the same. No one will question that the

interests of the great body of the people of the state,

would, in this instance, be affected by the surrender of this

great line of travel to a single corporation, with the right to

exact toll, and exclude competition for seventy years.

While the rights of private property are sacredly guarded,

Territorial Expansion, Political and Economic Developments, and International Relations 651