THE CHARLES RIVER BRIDGE CASE

letter to Mr. Justice McLean, May 10, 1837, in which his general despondency over the change in the attitude of the court is clearly set forth: "The opinion delivered by the Chief Justice has not been deemed satisfactory; and, indeed, I think I may say that a great majority of our ablest lawyers are against the decision of the Court; and those who think otherwise are not content with the views taken by the Chief Justice. "There will not, I fear, ever in our day, be any case in which a law of a State or of Congress will be declared unconstitutional; for the old constitutional doctrines are fast fading away, and a change has come over the public mind, from which I augur little good. Indeed, on my return home, I came to the conclusion to resign." As a summary of the whole case, perhaps the following statement by George W. Biddle is among the best of the many favorable comments upon it : ' "Story's dissenting opinion in the bridge case is a wonderful combination of great learning, and, if the phrase may be per mitted, of judicial oratory, in defense of a cause in which he thought the principles of morality and public integrity were involved and about to be successfully overthrown in the person of a valuable corporation which had been a pioneer in the cause of internal improvements. It was lighted up with the fires, not yet cooled, of the rulings in the Dartmouth College case, and was something like a protest against an assault supposed to be about to be committed upon the doc trine solemnly announced by that important decision. In truth, the principle of the Dartmouth College case perhaps correct enough, when limited as it was, applied to a private grant, had been pushed by its advocates to an extreme that would have left our State governments in possession of little more than the shell of legislative power. If the liberal ity of construction contended for had been permitted, all its essential attributes would have been parcelled out without possibility of reclamation, through recklessness or

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something worse, among the greedy appli cants for monopolistic privileges. . . . Unless the luxuriant growth, the result of the decision in 4 Wheaton, had been lopped and cut away by the somewhat trench ant reasoning of the Chief Justice, the whole field of legislation would have been choked and rendered useless in time to come for the production of any laws that would have met the needs of the increasing and highly developed energies of a steadily advancing community." Whether the above tribute to the decision of the case has been justified may well be doubted. In view of the expansion of railroads, the unnecessary paralleling of lines and the recklessness of legislatures in granting char ters, in subsequent years, a very strong argument could be made that the prosperity of the country would have been better promoted had the court followed Judge Story's decision on the law and the argu ments urged by Mr. Button and Mr. Webster. The subsequent course of State statute law in the United States would seem to show that the legislatures needed no judicial encouragement from the bench towards a relaxation of the policy of maintaining complete faith as to past grants.

The sequel to this case may be briefly summed up. At the session of the Massachusetts Legis lature of 1837, the Charles River Bridge applied for compensation but without suc cess, although by resolve of April 20, 1837, a joint committee was appointed: "to con sider and report: i. What is the value of Charles River Bridge? 2. What would have been the value of the franchise of the Corporation if the Warren Bridge charter had not been granted? What would have been its value if the Warren Bridge had remained a toll bridge and what is its value as it is now situated? 3. To inquire whether any arrangement can be made with 1 "Constitutional Developments in the United States any cities, towns or counties, for contributing as Influenced by Chief Justice Taney," by George W. to support said bridge as a free public avenue." Biddle.