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

Where a patent is repealed in chancery on a scire facias, it is at the suit of the king, on the ground that he was deceived, and his subjects thereby injured; but there is no case where a court of chancery has ever decreed the prostration of a mill, of a ferry, or other erection, on the sole ground of its diminishing the profits of an ancient one, or the want of power in the king to grant a concurrent franchise at any place not within the limits of one held by grant, custom, or prescription.

Taking, then, the cases relied on by the plaintiffs, as they are reported in the books, they not only fail to support their position, but directly overthrow it. The principles established, are equally fatal to their right to recover damages for the consequential injury by an action on the case, or to suppress any rival ferry by an assize of nuisance at law, or a bill for an injunction or suppression in equity. They must, in either case, show in themselves a right of property or possession in the place where a rival ferry is established, or a special custom, compelling the inhabitants of Boston and Charlestown to cross at their ferry, or they can have no standing in any court, even if they were privileged suitors in virtue of the personal prerogative of the king, as the fee farm tenants of a royal manor. As the plaintiffs do not sue in this, or any analogous character, by special privilege, it is unnecessary to show that they cannot be relieved in the character in which they sue, on any principle laid down in the case from Levins, or those cited from Hardress and Anstruther. An explanation of these cases was necessary, because they have been pressed with confidence as in point to the present, and for another reason; when explained, they show, that to bring the plaintiffs' case within them, it is requisite that they sue by the highest and most odious prerogative of the crown; that which is personal to the king for his private advantage, in his demesne lands. It was also proper as an argumentum ad hominem, to those who feel any sensibility in adopting the royal or prerogative rule of construing public grants so as to impair the public interest, by no constructive extension of them, to any public property not described expressly, or included by the necessary implication of its terms. With this explanation, it will not be difficult to ascertain which kind of royal prerogative is most congenial to our republican institutions; that which is personal within a royal manor, and enjoyed for private profit, or that which is a trust for the whole kingdom, and for the benefit of all its subjects; and whether the majority or minority of the court have properly applied the principle of the common law of ferries which was adopted in Massachusetts, as the law of the colony, in 1640, when the grant was made.

The case of Chadwicke v. The Haverhill Bridge has been pressed as evidence of the law of Massachusetts, not as the decision of any court, but as expressing the opinion of one eminent lawyer who brought the action, and of another who decided it as an arbitrator. Though I entertain the most profound respect for the professional

[Charles River Bridge v. Warren Bridge et al.] character of both the gentlemen alluded to, I cannot, as a judge, found my judgment on any opinion expressed by either, because not given under judicial responsibility. There can be but few cases, in which the mere opinion of counsel ought to be taken as authority in any court; but in this Court, testing the validity of a state law by the rules which are imperative upon us, I feel forbidden to defer my settled opinion on the law of the case, to that of any individual, however eminent.

There is no task more difficult or invidious, than to decide who were those eminent and distinguished members of the profession in former times, or who now are, to whose opinions a court of the last resort ought to pay judicial deference, and who were and are not deserving of such distinguished notice. Judges would incur great hazard in making the selection, and would form their opinions by very fallible standards, if they look beyond the state law on which the case arises, the provision of the constitution which applies to it, and the appropriate rules and principles which have been established by judicial authority. It is a risk which I will not incur, on any question involving the constitutionality of a state law; for if the case shall be so doubtful, that any man's opinions either way, which are not strictly judicial and authoritative, would turn the scale, I would overlook them, and decide according to the settled rule of this Court: that in every case the presumption is, that a state law is valid, and whoever alleges the contrary, is bound to show and prove it clearly. In obedience to this rule, I cannot recognise in any private opinions of any description, by whomsoever, or howsoever expressed or promulgated, any authority for rebutting such presumption. No more salutary rule was ever laid down by this Court, or impressed on its members in plainer language, than what is used by the late Chief Justice in the cases cited; nor can there be any rule in favour of the most strict observance of which, there can be any reasons which operate with such a weight of obligation on the Court as this ought.

There is no court in any country which is invested with such high powers as this; the constitution has made it the tribunal of the last resort, for the decision of all cases in law or equity arising under it. The twenty-fifth section of the judiciary act has made it our duty to take cognizance of writs of error from state courts, in cases of the most important and delicate nature. They are those only in which the highest court of a state has adjudged a state law to be valid, notwithstanding its alleged repugnance to the constitution, a law, or a treaty of the United States.

When this Court reverses the judgment, they overrule both the legislative and judicial authority of the state, without regard to the character or standing, political or judicial, of the individual members of either department; surely, then, it is our most solemn duty, not to found our judgment on the opinions of those who assume to decide on the validity of state laws, without any official power, sanction, or responsibility. If we defer to political authority, there can be none

1

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

higher than the three branches of the legislative power; if to judicial authority, the highest is the solemn judgment of the members of that court, in which is vested the supreme judicial power of the

state.

There is another still higher consideration, which arises from the effect of a final judgment of this Court under the twenty-fifth section; it is irreversible; it is capable of no correction or modification, save by an amendment to the constitution; it must be enforced by the executive power of the Union, and the state must submit to the prostration of its law, and its consequences, however severe the operation may be. That the case ought to be clear of any reasonable doubt in the mind of the Court, either as to the law, or its application, is a proposition self-evident; and there are no cases to which the rule applies with more force, than to those which turn on the obligation of contracts.

If we steadily adhere to it as a fundamental rule, that the judgment of the supreme court of a state on the validity of its statutes, shall stand affirmed, until it is proved to be erroneous, the effect would be most important on constitutional questions, and lead to a course of professional and judicial opinion, which would soon assign to all the now doubtful parts of the constitution, a definite and established meaning.

The plaintiffs have also relied on the opinion of the late learned chancellor of New York, in 4 J. C. 160; and 5 J. C. 111, 12; in which he puts the case of a rival ferry set up so near an old one as to diminish its profits, and refers to the rule laid down in F. N. B. 184; Bro. Ab. Action on the Case, pl. 57, tit. Nuisance, pl. 12, 2 R. A. 140; 3 Bl. Com. 219; 2 Saund. 172; and which is taken from the 22 H. 6, 14, 15. In putting this case as an illustration of those then before him, this great jurist stated the proposition in general terms merely, without that precision which he adopts as to the points directly presented, and he has deduced a rule much broader than the cases warrant, when closely examined. For the purposes of the cases then under consideration, the broad rule laid down might well be applied to the grants contained in the laws of the state on which the cases turned, as a safe guide to their construction. But when a question depends on the law, as established by the adjudged cases and old writers of standard and adopted authority, we must take it from the books themselves. Having already reviewed the cases in detail from the 22 H. 6, and stated my conclusions from them, I submit their correctness, without further remarking upon the rules preseribed, in relation to the extent of the rights of ferry.

I would have remained satisfied with what has been already said, if there had not been these expressions in the opinion in 4 J. C. 160, 1. "It would be like granting an exclusive right of ferriage between two given points, and then setting up a rival ferry within a few rods of those very points, and within the same course and line of travel. The common law contained principles applicable to this

[Charles River Bridge v. Warren Bridge et al.] very case, dictated by a sounder judgment, and a more enlightened morality."

After a reference to the rule laid down from the books which are cited, the opinion proceeds: "The same rule applies, in its spirit and substance, to all exclusive grants and monopolies. The grant must be so construed as to give it due effect, by excluding all contiguous and injurious competition." As these propositions are supported by an authority which cannot be too highly respected, and is difficult to oppose with success; I feel bound to support the negation of them, by a reference to cases and books which would have been deemed unnecessary, but for this opinion.

In Harg. L. T. 83, it has been seen that lord Hale uses the word contiguous to a port town, in contradistinction to within it, and most distinctly negatives the idea, that a contiguous ferry or other erection would be demolished, however injurious it might be. In his opinions as chief baron of the exchequer, in the cases cited, he decided upon the same principle. The authority of his treatise de Portibus Maris is universally admitted, as the best evidence of the law as it was understood in his time, in which he says, "It is part of the jus regale to erect public ports; so in special manner are the ports and the franchises thereof;" Harg. L. T. 53, 4. " A port hath a ville, or city, or borough," keys, wharves, cranes, warehouses and other privileges and franchises; Harg. 46, 77. " If a man hath portum maris, by prescription or custom, it is as a manor; he hath not only the franchise but the very water and soil within the port;" Harg. 33. "Every port is a franchise, or liberty, as a market or a fair and much more." It has of necessity a market, and tolls incident; it cannot be erected without a charter or prescription; Harg. 50, 1; or if it is restrained, it cannot be extended or enlarged in any other way; ib. 52. Where it is by a custom or prescription, the consideration is the interest of the soil both of the shore and town, and of the haven wherein the ships ride, and the consequent interest of the franchise or liberty, which constitute the port in a legal signification; which are acquirable by a subject by prescription without any formality; ib. 54; and in ordinary usage and presumption they go together; ib. 33. The extent of the port depends on the prescription or usage; the court cannot take notice of its extent, further than the ville or town at its head, that gives it its denomination; if any further extension is alleged it is ascertained by the venire facias de vicineto portus, ib. 47, 70. The difference between a port by charter, and by custom or prescription, is thus illustrated:

"If the king at this day grant portum maris de S. the king having the port in point of interest, as well as in point of franchise, it may be doubtful whether at this day it carries the soil or only the franchise, because it is not to be taken by implication." "But surely if it were an ancient grant, and usage had gone along with it, that the grantor had also the soil; this grant might be effectual to pass both, for both are included in it;" Harg. 33; S. P. Cowp. 106.

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

The difference between an ancient grant, and one made at this day, is this: If made beyond legal memory, and in terms so general and obscure, as not to be any record pleadable, but ought to have the aid of some other matter of record within time of memory, or some act of allowance or of confirmation; they shall now be allowed only to the extent of such allowance or confirmation, and shall be construed according to the law when it was made, and the ancient allowance on record; 9 Co. 28, a; or prescription will be taken as evidence of the existence of a grant, and to supply its presumed loss by the lapse of time; 1 Bl. Com. 274; 2 Bl. Com. 265; though the record is not produced, or proof adduced of its being lost, a jury will presume the grant; Cowp. 110, 11; but if the grant is within time of memory, and wants no allowance, confirmation, or presumption, to give it effect, it is pleadable without showing either; 9 Co. 28. This is called a grant at the present day; an ancient grant is by prescription. When a grant of the franchise of a port by prescription, or an ancient grant of an ancient port, is thus made out, it imports the incident franchises of markets, fairs, ferries, keys, wharves, landings, &c., and the toll for each; and the franchise is supposed to have been founded on the right of soil in fee simple, for no prescription can be founded on any less estate; 2 Bl. Com. 265. As tenant in fee of soil and franchise to the extent of the port, no right of property can be of a higher grade, or be entitled to a higher degree of protection by the law; the fee of the soil is a greater right than a mere liberty or franchise in or over it; the principal franchise of a port is higher and more important than any of the incidental franchises. When once established, the king cannot resume them, narrow, or confine their limits; 1 Bl. Com. 264; for the crown hath not the power of doing wrong, but merely of preventing wrong from being done; 1 Bl. Com. 154. But however high and sacred these ancient grants of soil and franchise are, they are not protected from grants by the king, which may diminish their profits by injurious and contiguous competition; the contrary doctrine is laid down by lord Hale, and there cannot be found in the common law, a case or dictum to the contrary.

"If A hath a port in B, and the king is pleased to erect a new port hard by that, which it may be is more convenient for merchants, though it be a damage to the first port, so that there be no obstruction of the water, or otherwise, but that ships may, if they will, arrive at the former port, this, it seems, may be done. But then this new port must not be erected within the precincts of the former;" "he may erect a concurrent port, though near another, so it be not within the proper limits of the former, as shall be shown in the case of Hull and Yarmouth, hereafter;" Harg. 60, 61, to 66, 71.

"But it cannot be erected within the peculiar limits by charter or prescription, belonging to the former port, because that is part of the interest of the lord of the former port. Neither can the first port be obstructed, or wholly defaced, or excluded for arrival of