Rosenfeld Susan. Encyclopedia of American Historical Documents

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we must not forget that the community also have rights,

and that the happiness and well being of every citizen

depends on their faithful preservation.

Adopting the rule of construction above stated as the

settled one, we proceed to apply it to the charter of 1785,

to the proprietors of the Charles River Bridge. This act of

incorporation is in the usual form, and the privileges such

as are commonly given to corporations of that kind. It con-

fers on them the ordinary faculties of a corporation, for the

purpose of building the bridge; and establishes certain

rates of toll, which the company are authorized to take.

This is the whole grant. There is no exclusive privilege

given to them over the waters of Charles river, above or

below their bridge. No right to erect another bridge them-

selves, nor to prevent other persons from erecting one. No

engagement from the state, that another shall not be

erected; and no undertaking not to sanction competition,

nor to make improvements that may diminish the amount

of its income. Upon all these subjects the charter is silent;

and no thing is said in it about a line of travel, so much

insisted on in the argument, in which they are to have

exclusive privileges. No words are used, from which an

intention to grant any of these rights can be inferred. If the

plaintiff is entitled to them, it must be implied, simply,

from the nature of the grant; and cannot be inferred from

the words by which the grant is made.

The relative position of the Warren Bridge has already

been described. It does not interrupt the passage over the

Charles River Bridge, nor make the way to it or from it less

convenient. None of the faculties or franchises granted to

that corporation, have been revoked by the legislature; and

its right to take the tolls granted by the charter remains

unaltered. In short, all the franchises and rights of prop-

erty enumerated in the charter, and there mentioned to

have been granted to it, remain unimpaired. But its

income is destroyed by the Warren Bridge; which, being

free, draws off the passengers and property which would

have gone over it, and renders their franchise of no value.

This is the gist of the complaint. For it is not pretended,

that the erection of the Warren Bridge would have done

them any injury, or in any degree affected their right of

property; if it had not diminished the amount of their tolls.

In order then to entitle themselves to relief, it is necessary

to show, that the legislature contracted not to do the act of

which they complain; and that they impaired, or in other

words, violated that contract by the erection of the Warren

Bridge.

The inquiry then is, done the charter contain such a

contract on the part of the state? is there any such stipula-

tion to be found in that instrument? I must be admitted on

all hands, that there is none—no words that even relate to

another bridge, or to the diminution of their tolls, or to the

line of travel. If a contract on the subject can be gathered

from the charter, it must be by implication; and cannot be

found in the words used. Can such an agreement be

implied? The rule of construction before stated is an

answer to the question. In charters of this description, no

rights are taken from the public, or given to the corpora-

tion, beyond those which the words of the charter, by their

natural and proper construction, purport to convey. There

are no words which import such a contract as the plaintiffs

in error contend for, and none can be implied; and the

same answer must be given to them that was given by this

Court to the Providence Bank. The whole community are

interested in this inquiry, and they have a right to require

that the power of promoting their comfort and conve-

nience, and of advancing the public prosperity, by provid-

ing safe, convenient, and cheap ways for the transportation

of produce, and the purposes of travel, shall not be con-

strued to have been surrendered or diminished by the

state; unless it shall appear by plain words, that it was

intended to be done.

But the case before the Court is even still stronger

against any such implied contract, as the plaintiffs in error

contend for. The Charles River Bridge was completed in

1786. The time limited for the duration of the corporation

by their original charter, expired in 1826. When, therefore,

the law passed authorizing the erection of the Warren

Bridge, the proprietors of Charles River Bridge held their

corporate existence under the law of 1792, which extended

their charter for thirty years; and the rights, privileges, and

franchises of the company, must depend upon the con-

struction of the last mentioned law, taken in connection

with the act of 1785.

The act of 1792, which extends the charter of this

bridge, incorporates another company to build a bridge

over Charles river; furnishing another communication with

Boston, and distant only between one and two miles from

the old bridge.

The first six sections of this act incorporate the pro-

prietors of the West Boston Bridge, and define the privi-

leges, and describe the duties of that corporation. In the

seventh section there is the following recital: “And

whereas the erection of Charles River Bridge was a work

of hazard and public utility, and another bridge in the

place of West Boston bridge may diminish the emolu-

ments of Charles River Bridge; therefore, for the encour-

agement of enterprise,” they proceed to extend the charter

of the Charles River Bridge, and to continue it for the term

of seventy years from the day the bridge was completed;

subject to the conditions prescribed in the original act, and

to be entitled to the same tolls. It appears, then, that by the

same act that extended this charter, the legislature estab-

lished another bridge, which they knew would lessen its

profits; and this, too, before the expiration of the first char-

ter, and only seven years after it was granted; thereby

652 ERA 4: Expansion and Reform

showing, that the state did not suppose that, by the terms

it had used in the first law, it had deprived itself of the

power of making such public improvements as might

impair the profits of the Charles River Bridge; and from

the language used in the clauses of the law by which the

charter is extended, it would seem, that the legislature

were especially careful to exclude any inference that the

extension was made upon the ground of compromise with

the Bridge Company, or as a compensation for rights

impaired.

On the contrary, words are cautiously employed to

exclude that conclusion; and the extension is declared to

be granted as a reward for the hazard they had run, and

“for the encouragement of enterprise.” The extension was

given because the company had undertaken and executed

a work of doubtful success; and the improvements which

the legislature then contemplated, might diminish the

emoluments they had expected to receive from it. It

results from this statement, that the legislature in the very

law extending the charter, asserts its rights to authorize

improvements over Charles river which would take off a

portion of the travel from this bridge and diminish its prof-

its; and the Bridge Company accept the renewal thus

given, and thus carefully connected with this assertion of

the right on the part of the state. Can they, when holding

their corporate existence under this law, and deriving their

franchises altogether from it; add to the privileges

expressed in their charter an implied agreement, which is

in direct conflict with a portion of the law from which they

derive their corporate existence? Can the legislature be

presumed to have taken upon themselves an implied obli-

gation, contrary to its own acts and declarations contained

in the same law? It would be difficult to find a case justify-

ing such an implication, even between individuals; still less

will it be found where sovereign rights are concerned, and

where the interests of a whole community would be deeply

affected by such an implication. It would, indeed, be a

strong exertion of judicial power, acting upon its own views

of what justice required, and the parties ought to have

done; to raise, by a sort of judicial coercion, an implied

contract, and infer it from the nature of the very instru-

ment in which the legislature appear to have taken pains to

use words which disavow and repudiate any intention, on

the part of the state, to make such a contract.

Indeed, the practice and usage of almost every state in

the Union, old enough to have commenced the work of

internal improvement, is opposed to the doctrine con-

tended for on the part of the plaintiffs in error. Turnpike

roads have been made in succession, on the same line of

travel; the later ones interfering materially with the profits

of the first. These corporations have, in some instances,

been utterly ruined by the introduction of newer and bet-

ter modes of transportation, and traveling. In some cases,

rail roads have rendered the turnpike roads on the same

line of travel so entirely useless, that the franchise of the

turnpike corporation is not worth preserving. Yet in none

of these cases have the corporations supposed that their

privileges were invaded, or any contract violated on the

part of the state. Amid the multitude of cases which have

occurred, and have been daily occurring for the last forty

or fifty years, this is the first instance in which such an

implied contract has been contended for, and this Court

called upon to infer it from an ordinary act of incorpora-

tion, containing nothing more than the usual stipulations

and provisions to be found in every such law. The absence

of any such controversy, when there must have been so

many occasions to give rise to it, proves that neither states,

nor individuals, nor corporations, ever imagined that such

a contract could be implied from such charters. It shows

that the men who voted for these laws, never imagined

that they were forming such a contract; and if we maintain

that they have made it, we must create it by a legal fiction,

in opposition to the truth of the fact, and the obvious

intention of the party. We cannot deal thus with the rights

reserved to the states; and by legal intendments and mere

technical reasoning, take away from them any portion of

that power over their own internal police and improve-

ment, which is so necessary to their well being and pros-

perity.

And what would be the fruits of this doctrine of

implied contracts on the part of the states, and of property

in a line of travel by a corporation, if it should now be sanc-

tioned by this Court? To what results would it lead us? If it

is to be found in the charter to this bridge, the same pro-

cess of reasoning must discover it, in the various acts which

have been passed, within the last forty years, for turnpike

companies. And what is to be the extent of the privileges

of exclusion on the different sides of the road? The coun-

sel who have so ably argued this case, have not attempted

to define it by any certain boundaries. How far must the

new improvement be distant from the old one? How near

may you approach without invading its rights in the privi-

leged line? If this Court should establish the principles

now contended for, what is to become of the numerous rail

roads established on the same line of travel with turnpike

companies; and which have rendered the franchises of the

turnpike corporations of no value? Let it once be under-

stood that such charters carry with them these implied

contracts, and give this unknown and undefined property

in a line of traveling; and you will soon find the old turn-

pike corporations awakening from their sleep, and calling

upon this Court to put down the improvements which

have taken their place. The millions of property which

have been invested in rail roads and canals, upon lines of

travel which had been before occupied by turnpike corpo-

rations, will be put in jeopardy. We shall be thrown back to

Territorial Expansion, Political and Economic Developments, and International Relations 653

the improvements of the last century, and obliged to stand

still, until the claims of the old turnpike corporations shall

be satisfied; and they shall consent to permit these states

to avail themselves of the lights of modern science, and to

partake of the benefit of those improvements which are

now adding to the wealth and prosperity, and the conve-

nience and comfort, of every other part of the civilized

world. Nor is this all. This Court will find itself compelled

to fix, by some arbitrary rule, the width of this new kind of

property in a line of travel; for if such a right of property

exists, we have no lights to guide us in marking out its

extent, unless, indeed, we resort to the old feudal grants,

and to the exclusive rights of ferries, by prescription,

between towns; and are prepared to decide that when a

turnpike road from one town to another, had been made,

no rail road or canal, between these two points, could

afterwards be established. This Court are not prepared to

sanction principles which must lead to such results.

Many other questions, of the deepest importance,

have been raised and elaborately discussed in the argu-

ment. It is not necessary, for the decision of this case, to

express our opinion upon them; and the Court deem it

proper to avoid volunteering an opinion on any question,

involving the construction of the constitution, where the

case itself does not bring the question directly before

them, and make it their duty to decide upon it.

Some questions, also, of a purely technical character,

have been made and argued, as to the form of proceeding

and the right to relief. But enough appears on the record

to bring out the great question in contest; and it is the

interest of all parties concerned, that the real controversy

should be settled without further delay: and as the opinion

of the Court is pronounced on the main question in dis-

pute here, and disposes of the whole case, it is altogether

unnecessary to enter upon the examination of the forms of

proceeding, in which the parties have brought it before the

Court.

The judgment of the supreme judicial court of the

commonwealth of Massachusetts, dismissing the plaintiffs’

bill, must, therefore, be affirmed, with costs.

Source:

Reports of Cases Argued and Adjudged in the Supreme Court of

the United States. Vol. 12, 1837, pp. 536–553.

Pre-Emption Act of 1841

Federal legislation enacted on September 4, 1841, that per-

mitted western settlers to claim up to 160 acres of surveyed

public lands and, after a period of residence, to purchase that

land from the U.S. government at a minimum price of $1.25

per acre before it was put up for public auction. That act was

favored by western states to encourage settlement, rather than

land speculation, but was opposed by the eastern states, who

feared a loss of its labor supply. Eastern support was gained

with the addition of a plan to distribute revenues from the sale

of public lands among the states, based on population.

Though the distribution provisions were repealed in 1842, the

Pre-Emption Act remained in effect until 1891, when abuses

led to its repeal.

________________________

_______________________

An Act

To appropriate the proceeds of the sales of the public lands,

and to grant pre-emption rights.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That from and after the thirty-first day of December,

in the year of our Lord one thousand eight hundred and

forty-one, there be allowed and paid to each of the States

of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi,

Louisiana, Arkansas, and Michigan, over and above what

each of the said States is entitled to by the terms of the

compacts entered into between them and the United

States, upon their admission into the Union, the sum of ten

per centum upon the nett proceeds of the sales of the pub-

lic lands, which, subsequent to the day aforesaid, shall be

made within the limits of each of said States, respectively:

Provided, That the sum so allowed to the said States,

respectively, shall be in no wise affected or diminished on

account of any sums which have been heretofore, or shall

be hereafter, applied to the construction or continuance of

the Cumberland road, but that the disbursements for the

said road shall remain, as heretofore, chargeable on the

two per centum fund provided for by compacts with sev-

eral of the said States.

Sec. 2. And be it further enacted, That after deducting

the said ten per centum, and what, by the compacts afore-

said, has heretofore been allowed to the States aforesaid,

the residue of the nett proceeds, which nett proceeds shall

be ascertained by deducting from the gross proceeds all

the expenditures of the year for following objects: salaries

and expenses on account of the General Land Office;

expenses for surveying public lands; salaries and expenses

in the surveyor general’s offices; salaries, commissions, and

allowances to the registers and receivers; the five per cen-

tum to new States, of all the public lands of the United

States, wherever situated, which shall be sold subsequent

to the said thirty-first day of December, shall be divided

among the twenty-six States of the Union and the District

of Columbia, and the Territories of Wisconsin, Iowa, and

Florida, according to their respective federal representa-

tive population as ascertained by the last census, to be

applied by the Legislatures of the said States to such pur-

poses as the said Legislatures may direct: Provided, That

654 ERA 4: Expansion and Reform

the distributive share to which the District of Columbia

shall be entitled, shall be applied to free schools, or edu-

cation in some other form, as Congress may direct: And

provided, also, That nothing herein contained shall be con-

strued to the prejudice of future applications for a reduc-

tion of the price of the public lands, or to the prejudice of

applications for a transfer of the public lands, on reason-

able terms, to the States within which they lie, or to make

such future disposition of the public lands, or any part

thereof, as Congress may deem expedient.

Sec. 3. And be if further enacted, That the several

sums of money received in the Treasury as the nett pro-

ceeds of the sales of the public lands shall be paid at the

Treasury half yearly on the first day of January and July in

each year, during the operation of this act, to such person

or persons as the respective Legislatures of the said States

and Territories, or the Governors thereof, in case the Leg-

islatures shall have made no such appointment, shall

authorize and direct to receive the same.

Sec. 4. And be it further enacted, That any sum of

money, which at any time may become due, and payable to

any State of the Union, or to the District of Columbia, by

virtue of this act, as the portion of the said State or District,

of the proceeds of the sales of the public lands, shall be

first applied to the payment of any debt, due, and payable

from the said State or District, to the United States: Pro-

vided, That this shall not be construed to extend to the

sums deposited with the States under the act of Congress

of twenty-third June, eighteen hundred and thirty-six,

entitled “an act to regulate the deposits of the public

money,” nor to any sums apparently due to the United

States as balances of debts growing out of the transactions

of the Revolutionary war.

Sec. 5. And be it further enacted That this act shall

continue and be in force until otherwise provided by law,

unless the United States shall become involved in war with

any foreign Power, in which event, from the commence-

ment of hostilities, this act shall be suspended during the

continuance of such war: Provided, nevertheless, That if,

prior to the expiration of this act, any new State or States

shall be admitted into the Union, there be assigned to such

new State or States, the proportion of the proceeds accru-

ing after their admission into the Union, to which such

State or States may be entitled, upon the principles of this

act, together with what such State or States may be enti-

tled to by virtue of compacts to be made on their admis-

sion into the Union.

Sec. 6. And be it further enacted, That there shall be

annually appropriated for completing the surveys of said

lands, a sum not less than one hundred and fifty thousand

dollars; and the minimum price at which the public lands

are now sold at private sale shall not be increased, unless

Congress shall think proper to grant alternate sections

along the line of any canal or other internal improvement,

and at the same time to increase the minimum price of the

sections reserved; and in case the same shall be increased

by law, except as aforesaid, at any time during the opera-

tion of this act, then so much of this act as provides that the

nett proceeds of the sales of the public lands shall be dis-

tributed among the several States, shall, from and after the

increase of the minimum price thereof, cease and become

utterly null and of no effect, any thing in this act to the

contrary notwithstanding: Provided, That if, at any time

during the existence of this act, there shall be an imposi-

tion of duties on imports inconsistent with the provisions

of the act of March second one thousand eight hundred

and thirty-three, entitled, “An act to modify the act of the

fourteenth of July one thousand eight hundred and thirty-

two, and all other acts imposing duties on imports,” and

beyond the rate of duty fixed by that act, to wit: twenty per

cent on the value of such imports, or any of them, then the

distribution provided in this act shall be suspended and

shall so continue until this cause of its suspension shall be

removed, and when removed, if not prevented by other

provisions of this act, such distribution shall be resumed.

Sec. 7. And be it further enacted, That the Secretary of

the Treasury may continue any land district in which is sit-

uated the seat of government of any one of the States, and

may continue the land office in such district, notwith-

standing the quantity of land unsold in such district may

not amount to one hundred thousand acres, when, in his

opinion, such continuance may be required by public con-

venience, or in order to close the land system in such State

at a convenient point, under the provisions of the act on

that subject, approved twelfth June, one thousand eight

hundred and forty.

Sec. 8. And be it further enacted, That there shall be

granted to each State specified in the first section of this

act five hundred thousand acres of land for purposes of

internal improvement: Provided, that to each of the said

States which has already received grants for said purposes,

there is hereby granted no more than a quantity of land

which shall, together with the amount such State has

already received as aforesaid, make five hundred thousand

acres, the selections in all of the said States, to be made

within their limits respectively in such manner as the Leg-

islatures thereof shall direct; and located in parcels con-

formably to sectional divisions and subdivisions, of not less

than three hundred and twenty acres in any one location,

on any public land except such as is or may be reserved

from sale by any law of Congress or proclamation of the

President of the United States, which said locations may

be made at any time after the lands of the United States in

said States respectively, shall have been surveyed accord-

ing to existing laws. And there shall be and hereby is,

granted to each new State that shall be hereafter admitted

Territorial Expansion, Political and Economic Developments, and International Relations 655

into the Union, upon such admission, so much land as,

including such quantity as may have been granted to such

State before its admission, and while under a Territorial

Government, for purposes of internal improvement as

aforesaid, as shall make five hundred thousand acres of

land, to be selected and located as aforesaid.

Sec. 9. And be it further enacted That the lands herein

granted to the States above named shall not be disposed of

at a price less than one dollar and twenty-five cents per

acre, until otherwise authorized by a law of the United

States; and the nett proceeds of the sales of said lands shall

be faithfully applied to objects of internal improvement

within the States aforesaid, respectively, namely: Roads,

railways, bridges, canals and improvement of water-

courses, and draining of swamps; and such roads, railways,

canals, bridges and water-courses, when made or im-

proved, shall be free for the transportation of the United

States mail, and munitions of war, and for the passage of

their troops, without the payment of any toll whatever.

Sec. 10. And be it further enacted, That from and after

the passage of this act, every person being the head of a

family, or widow, or single man, over the age of twenty-one

years, and being a citizen of the United States, or having

filed his declaration of intention to become a citizen, as

required by the naturalization laws, who since the first day

of June, A.D. eighteen hundred and forty, has made or

shall hereafter make a settlement in person on the public

lands to which the Indian title had been at the time of such

settlement extinguished, and which has been, or shall have

been, surveyed prior thereto, and who shall inhabit and

improve the same, and who has or shall erect a dwelling

thereon, shall be, and is hereby, authorized to enter with

the register of the land office for the district in which such

land may lie, by legal subdivisions, any number of acres not

exceeding one hundred and sixty, or a quarter section of

land, to include the residence of such claimant, upon pay-

ing to the United States the minimum price of such land,

subject, however, to the following limitations and excep-

tions: No person shall be entitled to more than one pre-

emptive right by virtue of this act; no person who is the

proprietor of three hundred and twenty acres of land in

any State or Territory of the United States, and no person

who shall quit or abandon his residence on his own land to

reside on the public land in the same State or Territory,

shall acquire any right of pre-emption under this act; no

lands included in any reservation, by any treaty, law, or

proclamation of the President of the United States, or

reserved for salines, or for other purposes; no lands

reserved for the support of schools, nor the lands acquired

by either of the two last treaties with the Miami tribe of

Indians in the State of Indiana, or which may be acquired

of the Wyandot tribe of Indians in the State of Ohio, or

other Indian reservation to which the title has been or may

be extinguished by the United States at any time during

the operation of this act; no sections of land reserved to the

United States alternate to other sections granted to any of

the States for the construction of any canal, railroad, or

other public improvement; no sections or fractions of sec-

tions included within the limits of any incorporated town;

no portions of the public lands which have been selected

as the site for a city or town; no parcel or lot of land actu-

ally settled and occupied for the purposes of trade and not

agriculture; and no lands on which are situated any known

salines or mines, shall be liable to entry under and by

virtue of the provisions of this act. And so much of the pro-

viso of the act of twenty-second of June, eighteen hundred

and thirty-eight, or any order of the President of the

United States, as directs certain reservations to be made in

favor of certain claims under the treaty of Dancing-rabbit

creek, be, and the same is hereby, repealed: Provided,

That such repeal shall not affect any title to any tract of

land secured in virtue of said treaty.

Sec. 11. And be it further enacted, That when two or

more persons shall have settled on the same quarter sec-

tion of land, the right of pre-emption shall be in him or her

who made the first settlement, provided such persons shall

conform to the other provisions of this act; and all ques-

tions as to the right of pre-emption arising between differ-

ent settlers shall be settled by the register and receiver of

the district within which the land is situated, subject to an

appeal to and a revision by the Secretary of the Treasury of

the United States.

Sec. 12. And be it further enacted, That prior to any

entries being made under and by virtue of the provisions

of this act, proof of the settlement and improvement

thereby required, shall be made to the satisfaction of the

lands may lie, agreeably to such rules as shall be prescribed

by the Secretary of the Treasury, who shall each be entitled

to receive fifty cents from each applicant for his services,

to be rendered as aforesaid; and all assignments and trans-

fers of the right hereby secured, prior to the issuing of the

patent, shall be null and void.

Sec. 13. And be it further enacted, That before any

person claiming the benefit of this act shall be allowed to

enter such lands, he or she shall make oath before the

receiver or register of the land district in which the land is

situated, (who are hereby authorized to administer the

same,) that he or she has never had the benefit of any right

of pre-emption under this act; that he or she is not the

owner of three hundred and twenty acres of land in any

State or Territory of the United States, nor hath he or she

settled upon and improved said land to sell the same on

speculation, but in good faith to appropriate it to his or her

656 ERA 4: Expansion and Reform

own exclusive use or benefit; and that he or she has not,

directly or indirectly, made any agreement or contract, in

any way or manner, with any person or persons whatsoever,

by which the title which he or she might acquire from the

Government of the United States, should ensure in whole

or in part, to the benefit of any person except himself or

herself; and if any person taking such oath shall swear

falsely in the premises, he or she shall be subject to all the

pains and penalties of perjury, and shall forfeit the money

which he or she may have paid for said land, and all right

and title to the same; and any grant or conveyance which

he or she may have made, except in the hands of bona fide

purchasers, for a valuable consideration, shall be null and

void. And it shall be the duty of the officer administering

such oath to file a certificate thereof in the public land

office of such district, and to transmit a duplicate copy to

the General Land Office, either of which shall be good and

sufficient evidence that such oath was administered

according to law.

Sec. 14. And be it further enacted, That this act shall

not delay the sale of any of the public lands of the United

States beyond the time which has been, or may be,

appointed by the proclamation of the President, nor shall

the provisions of this act be available to any person or per-

sons who shall fail to make the proof and payment, and file

the affidavit required before the day appointed for the

commencement of the sales as aforesaid.

Sec. 15. And be it further enacted, That whenever any

person has settled or shall settle and improve a tract of

land, subject at the time of settlement to private entry, and

shall intend to purchase the same under the provisions of

this act, such person shall in the first case, within three

months after the passage of the same, and in the last within

thirty days next after the date of such settlement, file with

the register of the proper district a written statement,

describing the land settled upon, and declaring the inten-

tion of such person to claim the same under the provisions

of this act; and shall, where such settlement is already

made, within twelve months after the passage of this act,

and where it shall hereafter be made, within the same

period after the date of such settlement, make the proof,

affidavit, and payment herein required; and if he or she

shall fail to file such written statement as aforesaid, or shall

fail to make such affidavit, proof, and payment, within

the twelve months aforesaid, the tract of land so settled

and improved shall be subject to the entry of any other

purchaser.

Sec. 16. And be it further enacted, That the two per

cent. of the nett proceeds of the lands sold, or that may

hereafter be sold, by the United States in the State of Mis-

sissippi, since the first day of December, eighteen hundred

and seventeen, and by the act entitled “An act to enable

the people of the western part of the Mississippi Territory

to form a constitution and State government, and for the

admission of such State into the Union on an equal footing

with the original States,” and all acts supplemental thereto

reserved for the making of a road or roads leading to said

State, be, and the same is hereby relinquished to the State

of Mississippi, payable in two equal instalments; the first to

be paid on the first of May, eighteen hundred and forty-

two, and the other on the first of May, eighteen hundred

and forty-three, so far as the same may then have accrued,

and quarterly, as the same may accrue, after said period:

Provided, That the Legislature of said State shall first pass

an act, declaring their acceptance of said relinquishment in

full of said fund, accrued and accruing, and also embracing

a provision, to be unalterable without the consent of

Congress, that the whole of said two per cent. fund shall be

faithfully applied to the construction of a railroad, leading

from Brandon, in the State of Mississippi, to the eastern

boundary of said State, in the direction, as near as may be,

of the towns of Selma, Cahaba, and Montgomery, in the

State of Alabama.

Sec. 17. And be it further enacted, That the two per

cent. of the nett proceeds of the lands sold by the United

States, in the State of Alabama, since the first day of

September, eighteen hundred and nineteen, and reserved

by the act entitled “An act to enable the people of the

Alabama Territory to form a constitution and State gov-

ernment, and for the admission of such State into the

Union on an equal footing with the original States,” for

the making of a road or roads leading to the said State, be,

and the same is hereby, relinquished to the said State of

Alabama, payable in two equal instalments, the first to be

paid on the first day of May, eighteen hundred and forty-

two, and the other on the first day of May, eighteen hun-

dred and forty-three, so far as the same may then have

accrued, and quarterly, as the same may thereafter

accrue: Provided, That the Legislature of said State shall

first pass an act, declaring their acceptance of said relin-

quishment, and also embracing a provision, to be unalter-

able without the consent of Congress, that the whole of

said two per cent. fund shall be faithfully applied, under

the direction of the Legislature of Alabama, to the con-

nection, by some means of internal improvement, of

the navigable waters of the bay of Mobile with the Ten-

nessee river, and to the construction of a continuous line

of internal improvements from a point on the Chatta-

hoochie river, opposite West Point, in Georgia, across the

State of Alabama, in a direction to Jackson in the State of

Mississippi.

Source:

Statutes at Large. Vol. 5, pp. 453–458.

Territorial Expansion, Political and Economic Developments, and International Relations 657

Treaty of Wanghia, 1844

Treaty signed on July 3, 1844, at Wanghia, China (near

Macao), between the United States and China, opening cer-

tain Chinese ports to American trade and granting Americans

the right of extraterritoriality, or exemption from the jurisdic-

tion of Chinese laws and courts (Americans accused of crimes

were to be tried by American consular officials). The treaty

was negotiated by U.S. commissioner Caleb Cushing, and the

U.S. Senate consented to it on January 8, 1845. As in other

treaties concluded with Great Britain and France during this

period, China therein granted a foreign power most-favored-

nation status, guaranteeing trading equality. The Wanghia

agreement led to increased American trade and an influx of

Christian missionaries into China.

At Tientsin on June 18, 1858, after the Anglo-French War

against China (1857–58), U.S. minister to China William B.

Reed signed a new treaty. China opened up 11 additional

treaty ports to foreign trade and residence and provided for

extraterritorial protection of foreign nationals traveling and

trading throughout China. In the treaty, Reed secured the same

treatment for U.S. citizens as other foreigners had obtained

through earlier treaties with China.

________________________

_______________________

Treaty with China

The United States of America and the Ta Tsing Empire,

desiring to establish firm, lasting, and sincere friendship

between the two nations, have resolved to fix, in a manner

clear and positive, by means of a treaty or general conven-

tion of peace, amity, and commerce, the rules which shall

in future be mutually observed in the intercourse of their

respective countries:—For which most desirable object,

the President of the United States has conferred full pow-

ers on their Commissioner Caleb Cushing, Envoy Extraor-

dinary and Minister Plenipotentiary of the United States to

China; and the August Sovereign of the Ta Tsing Empire

on his Minister and Commissioner Extraordinary Tsiyeng,

of the Imperial House, a vice Guardian of the Heir Appar-

ent, Governor-general of the Two Kwang, and Superinten-

dent General of the trade and foreign intercourse of the

five ports.

And the said Commissioners, after having exchanged

their said full powers, and duly considered the premises,

have agreed to the following articles:

Article I

There shall be a perfect, permanent, universal peace, and

a sincere and cordial amity, between the United States of

America on the one part, and the Ta Tsing Empire on the

other part, and between their people respectively, without

exception of persons or places.

Article II

Citizens of the United States resorting to China for the

purposes of commerce will pay the duties of import and

export prescribed in the Tariff, which is fixed by and made

a part of this Treaty. They shall, in no case, be subject to

other or higher duties than are or shall be required of the

people of any other nation whatever. Fees and charges of

every sort are wholly abolished, and officers of the rev-

enue, who may be guilty of exaction, shall be punished

according to the laws of China. If the Chinese Govern-

ment desire to modify, in any respect, the said Tariff, such

modification shall be made only in consultation with con-

suls or other functionaries thereto duly authorized in

behalf of the United States, and with consent thereof. And

if additional advantages or privileges of whatever descrip-

tion, be conceded hereafter by China to any other nation,

the United States, and the citizens thereof, shall be enti-

tled thereupon, to a complete, equal, and impartial partic-

ipation in the same.

Article III

The citizens of the United States are permitted to frequent

the five ports of Kwang-chow, Amoy, Fuchow, Ningpo, and

Shanghai, and to reside with their families and trade there,

and to proceed at pleasure with their vessels and mer-

chandize to and from any foreign port and either of the

said five ports, and from either of the said five ports to any

other of them. But said vessels shall not unlawful enter the

other ports of China, nor carry on a clandestine and fraud-

ulent trade along the coasts thereof. And any vessel

belonging to a citizen of the United States, which violates

this provision, shall, with her cargo, be subject to confisca-

tion to the Chinese Government.

Article IV

For the superintendence and regulation of the concerns

of the citizens of the United States doing business at

the said five ports, the Government of the United States

may appoint consuls, or other officers, at the same, who

shall be duly recognized as such by the officers of the

Chinese Government, and shall hold official intercourse

and correspondence with the latter, either personal or in

writing, as occasions may require, on terms of equality

and reciprocal respect. If disrespectfully treated or

aggrieved in any way by the local authorities, said officers

on the one hand shall have the right to make representa-

tion of the same to the superior officers of the Chinese

Government, who will see that full inquiry and strict jus-

tice be had in the premises; and on the other hand, the

said consuls will carefully avoid all acts of unnecessary

offence to, or collision with, the officers and people of

China.

658 ERA 4: Expansion and Reform

Article V

At each of the said five ports, citizens of the United States

lawfully engaged in commerce, shall be permitted to

import from their own or any other ports into China, and

sell there, and purchase therein, and export to their own or

any other ports, all manner of merchandize, of which the

importation or exportation is not prohibited by this Treaty,

paying the duties which are prescribed by the Tariff here-

inbefore established, and no other charges whatsoever.

Article VI

Whenever any merchant vessel belonging to the United

States shall enter either of the said five ports for trade, her

papers shall be lodged with the consul, or person charged

with affairs, who will report the same to the Commissioner

of Customs; and tonnage duty shall be paid on said vessel

at the rate of five mace per ton, if she be over one hundred

and fifty tons burden; and one mace per ton if she be of the

burden of one hundred and fifty tons or under, according

to the amount of her tonnage as specified in the register;

said payment to be in full of the former charges of mea-

surement and other fees, which are wholly abolished. And

if any vessel, which having anchored at one of the said

ports, and there paid tonnage duty, shall have occasion to

go to any others of the said ports to complete the disposal

of her cargo, the consul, or person charged with affairs,

will report the same to the Commissioner of Customs,

who, on the departure of the said vessel, will note in the

port-clearance that the tonnage duties have been paid, and

report the same to the other custom-houses; in which case

on entering another port the said vessel will only pay duty

there on her cargo, but shall not be subject to the payment

of tonnage duty a second time.

Article VII

No tonnage duty shall be required on boats belonging to

citizens of the United States, employed in the conveyance

of passengers, baggage, letters, and articles of provision, or

others not subject to duty, to or from any of the five ports.

All cargo-boats, however, conveying merchandize subject

to duty, shall pay the regular tonnage duty of one mace per

ton, provided they belong to citizens of the United States,

but not if hired by them from subjects of China.

Article VIII

Citizens of the United States, for their vessels bound in,

shall be allowed to engage pilots, who will report said ves-

sels at the passes, and take them into port; and, when the

lawful duties have all been paid, they may engage pilots to

leave port. It shall also be lawful for them to hire, at plea-

sure, servants, compradors, linguists, and writers, and pas-

sage or cargo boats, and to employ laborers, seamen, and

persons for whatever necessary service, for a reasonable

compensation, to be agreed on by the parties, or settled by

application to the consular officer of their government,

without interference on the part of the local officers of the

Chinese government.

Article IX

Whenever merchant vessels belonging to the United

States shall have entered port, the superintendent of cus-

toms will, if he see fit, appoint custom-house officers to

guard said vessels, who may live on board the ship or their

own boats, at their convenience; but provision for the sub-

sistence of said officers shall be made by the superinten-

dent of customs, and they shall not be entitled to any

allowance from the vessel or owner thereof; and they shall

be subject to suitable punishment for any exaction prac-

tised by them in violation of this regulation.

Article X

Whenever a merchant vessel belonging to the United

States shall cast anchor in either of said ports, the super-

cargo, master, or consignee, will, within forty-eight hours,

deposit the ship’s papers in the hands of the consul or per-

son charged with the affairs of the United States, who will

cause to be communicated to the superintendent of cus-

toms a true report of the name and tonnage of such vessel,

the names of her men, and of the cargo on board; which

being done, the superintendent will give a permit for the

discharge of her cargo.

And the master, supercargo, or consignee, if he pro-

ceed to discharge the cargo without such permit, shall

incur a fine of five hundred dollars; and the goods so dis-

charged without permit shall be subject to forfeiture to the

Chinese government. But if the master of any vessel in

port desire to discharge a part only of the cargo, it shall be

lawful for him to do so, paying duties on such part only,

and to proceed with the remainder to any other ports.

Or, if the master so desire, he may, within forty-eight

hours after the arrival of the vessel, but not later, decide to

depart without breaking bulk; in which case he will not be

subject to pay tonnage or other duties or charges, until, on

his arrival at another port, he shall proceed to discharge

cargo, when he will pay the duties on vessel and cargo,

according to law. And the tonnage duties shall be held to

be due after the expiration of said forty-eight hours.

Article XI

The superintendent of customs, in order to the collection

of the proper duties, will, on application made to him

through the consul, appoint suitable officers, who shall

proceed, in the presence of the captain, supercargo, or

consignee, to make a just and fair examination of all goods

Territorial Expansion, Political and Economic Developments, and International Relations 659

in the act of being discharged for importation, or laden for

exportation on board any merchant vessel of the United

States. And if dispute occur in regard to the value of goods

subject to an ad valorem duty, or in regard to the amount

of tare, and the same cannot be satisfactorily arranged by

the parties, the question may, within twenty-four hours,

and not afterwards, be referred to the said consul to adjust

with the superintendent of customs.

Article XII

Sets of standard balances, and also weights and measures,

duly prepared, stamped, and sealed, according to the stan-

dard of the custom at Canton, shall be delivered by the

superintendents of customs to the consuls at each of the

five ports, to secure uniformity, and prevent confusion in

measures and weights of merchandize.

Article XIII

The tonnage duty on vessels belonging to citizens of the

United States shall be paid on their being admitted to

entry. Duties of import shall be paid on the discharge of

the goods, and duties of export on the lading of the same.

When all such duties shall have been paid, and not before,

the superintendent of customs shall give a port-clearance,

and the consul shall return the ship’s papers, so that she

may depart on her voyage. The duties shall be paid to the

shroffs authorized by the Chinese government to receive

the same in its behalf. Duties payable by merchants of the

United States shall be received either in sycee silver or in

foreign money, at the rate of exchange as ascertained by

the regulations now in force. And imported goods, on their

resale or transit in any part of the empire, shall be subject

to the imposition of no other duty than they are accus-

tomed to pay at the date of this treaty.

Article XIV

No goods on board any merchant vessel of the United

States in port are to be transhipped to another vessel,

unless there be particular occasion therefor; in which case,

the occasion shall be certified by the consul to the super-

intendant of customs, who may appoint officers to examine

into the facts, and permit the transhipment. And if any

goods be transhipped without such application, inquiry,

and permit, they shall be subject to be forfeited to the Chi-

nese government.

Article XV

The former limitation of the trade of foreign nations to

certain persons appointed at Canton by the Government,

and commonly called hong-merchants, having been abol-

ished, citizens of the United States engaged in the pur-

chase or sale of goods of import or export, the admitted to

trade with any and all subjects of China without distinc-

tion; they shall not be subject to any new limitations, nor

impeded in their business by monopolies or other injuri-

ous restrictions.

Article XVI

The Chinese Government will not hold itself responsible

for any debts which may happen to be due from subjects

of China to citizens of the United States, or for frauds

committed by them: but citizens of the United States may

seek redress in law; and on suitable representation being

made to the Chinese local authorities through the consul,

they will cause due examination in the premises, and take

all proper steps to compel satisfaction. But in case the

debtor be dead, or without property, or have absconded,

the creditor cannot be indemnified according to the old

system of the co-hong so called. And if citizens of the

United States be indebted to subjects of China, the latter

may seek redress in the same way through the consul, but

without any responsibility for the debt on the part of the

United States.

Article XVII

Citizens of the United States residing or sojourning at any

of the ports open to foreign commerce, shall enjoy all

proper accommodation in obtaining houses and places of

business, or in hiring sites from the inhabitants on which to

construct houses and places of business, and also hospitals,

churches and cemeteries. The local authorities of the two

Governments shall select in concert the sites for the fore-

going objects, having due regard to the feelings of the peo-

ple in the location thereof: and the parties interested will

fix the rent by mutual agreement, the proprietors on the

one hand not demanding any exorbitant price, nor the

merchants on the other unreasonably insisting on particu-

lar spots, but each conducting with justice and moderation.

And any desecration of said cemeteries by subjects of

China shall be severely punished according to law.

At the places of anchorage of the vessels of the United

States, the citizens of the United States, merchants, sea-

men, or others sojourning there, may pass and repass in

the immediate neighbourhood; but they shall not at their

pleasure make excursions into the country among the vil-

lages at large, nor shall they repair to public marts for the

purpose of disposing of goods unlawfully and in fraud of

the revenue. And, in order to the preservation of the pub-

lic peace, the local officers of government at each of the

five ports, shall, in concert with the consuls, define the lim-

its beyond which it shall not be lawful for citizens of the

United States to go.

Article XVIII

It shall be lawful for the officers or citizens of the United

States to employ scholars and people of any part of China

660 ERA 4: Expansion and Reform

without distinction of persons, to teach any of the lan-

guages of the empire, and to assist in literary labors; and

the persons so employed shall not, for that cause, be sub-

ject to any injury on the part either of the government or

of individuals: and it shall in like manner be lawful for cit-

izens of the United States to purchase all manner of books

in China.

Article XIX

All citizens of the United States in China, peaceably

attending to their affairs, being placed on a common foot-

ing of amity and goodwill with subjects of China, shall

receive and enjoy, for themselves and every thing apper-

taining to them, the special protection of the local author-

ities of Government, who shall defend them from all insult

or injury of any sort on the part of the Chinese. If their

dwellings or property be threatened or attacked by mobs,

incendiaries, or other violent or lawless persons, the local

officers, on requisition of the consul, will immediately

despatch a military force to disperse the rioters, and will

apprehend the guilty individuals, and punish them with

the utmost rigor of the law.

Article XX

Citizens of the United States who may have imported mer-

chandize into any of the free ports of China, and paid the

duty thereon, if they desire to re-export the same, in part

or in whole, to any other of the said ports, shall be entitled

to make application, through their consul, to the superin-

tendant of Customs, who, in order to prevent frauds on the

revenue, shall cause examination to be made by suitable

officers to see that the duties paid on such goods, as

entered on the custom-house books, correspond with the

representation made, and that the goods remain with their

original marks unchanged, and shall then make a memo-

randum in the port-clearance, of the goods, and the

amount of duties paid on the same, and deliver the same

to the merchant; and shall also certify the facts to the offi-

cers of customs of the other ports. All which being done,

on the arrival in port of the vessel in which the goods are

laden, and every thing being found on examination there

to correspond, she shall be permitted to break bulk and

land the said goods, without being subject to the payment

of any additional duty thereon. But if, on such examina-

tion, the superintendent of customs shall detect any fraud

on the revenue in the case, then the goods shall be subject

to forfeiture and confiscation to the Chinese Government.

Article XXI

Subjects of China who may be guilty of any criminal act

towards citizens of the United States, shall be arrested and

punished by the Chinese authorities according to the laws

of China: and citizens of the United States, who may com-

mit any crime in China, shall be subject to be tried and

punished only by the consul, or other public functionary of

the United States, thereto authorized according to the laws

of the United States. And in order to the prevention of all

controversy and disaffection, justice shall be equitably and

impartially administered on both sides.

Article XXII

Relations of peace and amity between the United States

and China being established by this treaty, and the vessels

of the United States being admitted to trade freely to and

from the five ports of China open to foreign commerce, it

is further agreed that in case at any time hereafter, China

should be at war with any foreign nation whatever, and for

that cause should exclude such nation from entering her

ports, still the vessels of the United States shall not less

continue to pursue their commerce in freedom and secu-

rity, and to transport goods to and from the ports of the

belligerent parties, full respect being paid to the neutrality

of the flag of the United States: Provided that the said flag

shall not protect vessels engaged in the transportation of

officers or soldiers in the enemy’s service; nor shall said

flag be fraudulently used to enable the enemy’s ships with

their cargoes to enter the ports of China; but all such ves-

sels so offending shall be subject to forfeiture and confis-

cation to the Chinese Government.

Article XXIII

The consuls of the United States at each of the five ports

open to foreign trade, shall make annually to the respective

Governors-general thereof, a detailed report of the num-

ber of vessels belonging to the United States which have

entered and left said ports during the year, and of the

amount and value of goods imported or exported in said

vessels, for transmission to and inspection of the Board of

Revenue.

Article XXIV

If citizens of the United States have special occasion to

address any communication to the Chinese local officers of

Government, they shall submit the same to their consul, or

other officer, to determine if the language be proper and

respectful, and the matter just and right; in which event he

shall transmit the same to the appropriate authorities for

their consideration and action in the premises. In like

manner, if subjects of China have special occasion to

address the consul of the United States, they shall submit

the communication to the local authorities of their own

Government, to determine if the language be respectful

and proper, and the matter just and right; in which case the

said authorities will transmit the same to the consul, or

other officer, for his consideration and action in the

premises. And if controversies arise between citizens of

Territorial Expansion, Political and Economic Developments, and International Relations 661