Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road, 4 G. & J. 1

Lead Opinion

Buchanan, Ch. J.,

delivered the opinion of the court.

The charter of the Potomac Company, was created by the mutual and concurrent legislative acts of Maryland and Virginia, in the year 1784, to which there are many supplements.

The act for incorporating the Chesapeake and Ohio Canal Company, was passed by the legislature of Virginia on the 27th of January, 1824. The 1st section of which has this provision, “that so soon as the legislatures of Maryland and Pennsylvania, and the Congress of the United States, shall assent to the provisions of this act, and the Potomac Company shall have signified their assent to the same, by their corporate act, a copy whereof shall be delivered to the executives of the several States aforesaid, and to the Secretary of the Treasury of the United States, there shall be appointed by the said executives, and President of the United States,, three commissioners on the part of each State, and the government of the United States,” for the purpose among other things, of causing books to be opened under the management of “persons to be by them appointed for receiving subscriptions to the capital stock of the company,” &c. And by the 22d section it is enacted, “that this act or so much thereof as respects the canal and works designed to be constructed in the District of Columbia, and ' the states of Virginia and Maryland, shall take effect, with such necessary modification in the construction thereof, as shall fit it for such limited application or use, upon the assent of the Congress of the United States, and the legislature of Maryland being given thereto; and upon its receiving the further assent of the legislature of Pennsylvania, the whole and every section, and part thereof, shall be valid and in full force and operation.”

In an act of the legislature of the state of Maryland, passed on the 31st day of January, 1825, at the December session, 1824, entitled, “an act to confirm an act of the general assembly of the state of Virginia,” entitled, “an act incorporating the Chesapeake and Ohio Canal Company,” after reciting that act, the assent of the legislature is given to it in these words, “that the said act of the general assembly of Virginia be, and the same is hereby accepted, assented to, and confirmed.”

In an act of the Congress of the United States, passed on the 3d of March, 1825, entitled, “an act confirming an act of the legislature of Virginia,” entitled, “an act incorporating the Chesapeake and Ohio Canal Company,’’¿and an act of the State of Maryland confirming the same, the assent of Congress is given in these words, “that the act of the legislature of the State of Virginia, entitled, ‘an act incorporating the Chesapeake and Ohio Canal Company,’ be, and the same is hereby ratified and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed by the authority of the said act of incorporation, to carry into effect the provisions thereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no further.” And on 16th of May, 1825, the full and unqualified assent of the Potomac Company was declared and signified by a corporate act, in the manner required; with authority to the president and directors of that company, to surrender its charter, and convey all the property, rights and privileges, owned, possessed, and enjoyed under it, to the Chesapeake and Ohio Canal Company, agreeably to the provisions of the 13th section of the act incorporating the latter company; which surrender and transfer, the same section empowers the Chesapeake and Ohio Canal Company to accept. So that on the 16th of May, 1825, the act incorporating the Chesapeake and Ohio Canal Company, or so much thereof, as respects the canal and works designed to be constructed in the District of Columbia, and the States of Virginia and Maryland, in the language of the 22d section of that act “took effect,” the assent of the Congress of the United States, and of the legislature of Maryland having been before given to it; and the assent of the legislature of Pennsylvania being by the same section dispensed with, so far as respects those portions of the contemplated canal, and only required in relation to the part proposed to be made in that State. Still the assent of- the legislature of. Pennsylvania, on certain conditions not material in. the examination of this case,.which relate only to a portion of'the canal designed to be constructed in this State, was. given . by .an act of the 7th of February, 1826—and commissioners were appointed as authorised by the charter, by the President of the United States, and the executives of Virginia and Maryland, fox-receiving subscriptions to the capital stock of the company, &.c.

On the 3d of December, 1823, the President of the United States, adverting in his message to Congress, to the proceedings of a convention, called the Chesapeake and Ohio Canal Convention, (which had sat at the city of Washington in the preceding month of November,) in relatioix to the scheme of the Chesapeake and Ohio Canal, recommended the authorising by an adequate appropriation, the employment of a suitable number of the officers of the corps of engineers, to examine the ground, and report their opinion thereon. On the 30th of April, 1824, an act of Congress was passed in pursuance thereof, appropriating $30,000 for the purpose of procuring the neeessai-y surveys, plans and estimates, upon the subject of roads and canals. In the month of May, 1824, the President appointed a board of internal improvement, who were, on the 31st of the same month, instructed to “proceed to make an immediate reconnoisance of the country between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, &c.” “for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable route for the same, and of forming plans and estimates in detail, of the expense of execution, and to use every possible exertion to have their report prepared in time, to. he submitted to Congress at their next session. On the 2d of February, 1825, the board of engineers for internal improvement, made a report of their proceedings, accompanied by surveys, maps and profiles, but without any estimate of the probable cost of the projected work, which was communicated to Congress by the President, on the 14th of the same month. At this time, neither the assent of Congress, nor of the Potomac Company, had been given to the act of incorporation. That report which was immediately printed and published, by order of Congress, asserts the entire practicability of a communication between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, by a continuous canal, which, in the report, surveys and maps, is called the Chesapeake and Ohio Canal; and that portion of it extending from the tide waters of the Potomac, to the mouth of Savage river, on the north branch of the Potomac, is designated as the eastern section, which, in the report is described in these words; “this section ascends the valley of the Potomac, as-the several ridges which that river traverses and breaks through, oblige to follow its course without any deviation, the side on which it should ascend along the river, is the only choice left to the engineer.”

The route of that section throughout its whole course, as surveyed and laid down by the board of engineers for internal improvement, is in the valley of the Potomac, along the shores of the river; particular places being marked, as suitable points for crossing the river from shore to shore, should it be found necessary, but a preference being given to the north or left side. Thus, they say in one part of the report, “ this short analysis is sufficient to show, that the northern side of the valley offers the best ground for receiving the bed of the canal. ” And after describing the Valley, they say, “ such are the local features of the valley through which this section of the canal, east of the Alleghany must be-directed.”

On the, 6th March, 1826, the'legislature - of Maryland passed a law for the promotion of internal improvement, incorporating a company to be called, “ The Maryland Canal Company,” to nialce a canal “ from some convenient point on the Potomac River, intersecting or continuing The Chesapeake and Ohio Canal to the city of Baltimore;” authorising a subscription by the treasurer, for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company owned by the State, and of the debt due to the State by that company; and also authorising the treasurer to subscribe for 5000 shares of the stock of the Chesapeake and Ohio Canal Company, on condition among other things, that the Congress of the United States should by law, authorise a subscription for not less than ten thousand shares of the capital stock of the eastern section of that canal, with a proviso, that the executive of the State, “ shall previously be satisfied, that the residue of the sum of money estimated by the United States, board of engineers, to be adequate to the completion of the • eastern section of the Chesapeake and Ohio Canal, after deducting the amount of the subscriptions of the State of Maryland and of the United States, therein provided to be made, hath been actually subscribed by bona fide and competent subscribers.” Thus recognizing the board of engineers for internal improvement, and sanctioning the survey and location, they had made of the route of the eastern section of the Chesapeake and Ohio Canal, through the valley and along the shore of the river Potomac, which was the basis of the estimate to be made by them of the amount necessary to the completion of the canal. On the 8th March, 1826, permission was given to the State of Pennsylvania, by an act of the legislature of Maryland, to make any canal or rail way, “ to connect with the Chesapeake and Ohio Canal.”

On the 23d October, 1826, the board of engineers for internal improvement made a report exhibiting a plan, and estimate of the cost of constructing the canal; which report was communicated to Congress on the 7th December, 1826, and printed and published by order of Congress. The estimated cost of the eastern section from Cumberland to Georgetown, 186 miles, is $8,177,081 05, which estimate is made upon the basis of the survey, before made and reported by them on the 2d February, 1825, confining the route of that section to the valley of the Potomac; and upon the construction of the canal, upon, and along the 'Maryland shore throughout. The engineers in their report, say, “ after due investigations upon this subject, we remain convinced, that it is more expedient, less expensive, and liable to less accidents, to keep without deviation, on the same side of the valley ; and the Maryland side has received the preference, for the following reasons, &c.” Their estimate of the cost of the whole canal to the Ohio is $22,375,427 69.

These estimates not being satisfactory, and differing essentially from estimates made by the Chesapeake and Ohio Canal Convention, and no aid being given by Congress during that session, to the Chesapeake and Ohio Canal Company; on the 3d March, 1827, a number of the members of Congress, requested of the President, that they might be submitted during the recess, to the revision of practical civil engineers, and James Geddes and Nathan S. Roberts were appointed to re-examine the route of the canal, as it had been surveyed and laid down by the board of engineers for internal improvement, and to report on the expense of constructing it.

On the 5th February, 1827, at the December session, 1826, the legislature of Maryland passed a law to amend the “act incorporating the Chesapeake and Ohio Canal Company the first section of which in terms requires, “ that it shall receive the assent of the necessary parties thereto,” and the last section provides, “ that it shall commence and be in force, as soon as if shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company.” This act authorises the termination of “ the eastern section of the canal, at or near the town of Cumberland, on the river Potomac,” and the substitution of inclined planes and rail ways in crossing the ridge, which separates the eastern from the western waters ; and provides “that the company shall háve the power to extend a branch of the canal to the coal banks, at or above the mouth of Savage,” in the event, that, the western section shall leave the valley of the Potomac river, at any point below the coal banks.” This act received the assent of the legislature of Virginia on the 26th February; 1827, of the Congress of the United States on the 23'd May, 1828, and of the Potomac Company on the 10th 'July, 1828.

At the December session, 1826, on the 10th March, 1827 the legislature of Maryland passed a supplement to the act for the promotion of internal improvement, repealing certain provisos in the act to' which it is a supplement, upon which, a subscription for five thousand shares of the stock of the Chesapeake and Ohio Canal Company was made to depend; and also repealing, so much of the act to incorporate the Susquehanna and Patapsco Canal Company, as should be found to be inconsistent with the provisions of the act, to incorporate the Pennsylvania and Maryland Canal Company.

On the 20th August, 1827, due notice was given by the commissioners, that books would be opened on the 1st October following, for receiving subscriptions to the stock of the company; the books were opened accordingly, and on the 14th November, 1827, the amount of stock subscribed for unconditionally, exceeded $1,500,000, exclusive of subscriptions payable in the stock and debts of the Potomac Company.

At the December session, 1827, on the 2d January, 1828, the legislature of Maryland passed an act further to amend the act incorporating the Chesapeake and Ohio Canal Company; by which the stock is declared to be personal property, and aliens are authorised to subscribe for, and hold it; to commence and be in force, as soon as it should receive the assent of Congress, the legislature of Virginia, the Potomac Company, and the stockholders of the Chesapeake and Ohio Canal Company. To which, the legislature of Virginia assented on the 26th February, 1828, the Congress of the United States on the 23d May, 1828, The Chesapeake and Ohio Canal, Company on the 3d July, 1828, and the Potomac Company on the 10th July, 1828.

At the same session, on the 3d March, 1828, the legislature of Maryland passed a further supplement to the act for the promotion of internal improvement, reciting one of the conditions,’’upon which the treasurer of the State, had, by a former act been authorised to subscribe for five thousand shares of the stock of the Chesapeake and Ohio Canal Company; and the importance it was of, to the State, that the grant already made by her to that company, should be made dependent upon such other conditions and restrictions, as would effectually secure the completion of the work, if ever commenced, &c.; and authorising the treasurer to subscribe for the said five thousand shares, on the condition of stock to the amount of $2,500,000 being subscribed for, by bona fide purchasers, with sufficient security to ensure a faithful compliance on the part of such subscribers ; with other conditions requiring the agreement thereto of the president and directors of the company, and repealing any act or acts, repugnant to, or inconsistent therewith, the conditions of which act, were assented to by the company on the 23d June, 1828.

On the 5th March, 1828, the commissioners for receiving subscriptions to the stock, called a meeting of the stockholders on the 7th April following, for the purpose of electing a president and directors.

On the 10th March, 1828, the Secretary of War, transmitted to Congress, in obedience to a resolution of the house of representatives of the 26th of the preceding month, the report of James Geddes and Nathan S. Roberts, (the civil engineers appointed for that purpose,) of the survey and location made by them of the route of the eastern section of the Chesapeake and Ohio Canal, from a little below Cumberland, through the valley of the Potomac to the tide water at Georgetown, and along the Maryland shore of the river; accompanied by estimates of the cost of construction, amounting for a sixty feet canal, to $4,479,346 93.

On the 4th of April, 1828, the meeting of the stockholders which had been called on the 5th of March preceding, was deferred, for the reasons assigned by the commissioners in their publication of the postponement, that the government of the United States, and the State of Maryland, might participate in the organization of the company, when Congress should have definitively acted on the memorials of the district corporations, and of the central committee of the Chesapeake and Ohio convention, and the commissioners; which were for a subscription to the stock of the company, and for which a bill was then depending in Congress.

The act of Congress of the 23d of May, 1828, among other things recognizes the assent given by the United States, to the charter of the Chesapeake and Ohio Canal Company, by the act of 3d of March, 1825. By an act of Congress of the 24th of May, 1828, the Secretary of the Treasury is authorised to subscribe for ten thousand shares of the stock of the Chesapeake and Ohio Canal Company, the report, survey and estimate, of Geddes and Roberts, having then been received and acted upon. And by another act of the same day, authority was given to the corporations of Washington, Georgetown, and Alexandria, to subscribe for stock, and the subscriptions before made by them, were declared to be valid and binding.

On the 26th of May, 1828, Congress-having then authorised a subscription for ten thousand shares of stock, and declared the subscriptions before made by the district corporations, to be valid and binding, a meeting of the stockholders on the 20th of June, 1828, was regularly called by the commissioners, where president and directors were elected, and the company duly organized.

On the 26th of June, 1828, the route and site surveyed by the United States' board of engineers, for internal improvement, and by Messrs. Geddes and Roberts, and communicated to Congress, were adopted (so far as they corresponded,) by the president and directors, as the line of the Chesapeake and Ohio Canal below Cumberland.

On the 10th of July, 1828, the Potomac Company assented to all the acts of Congress, and of the legislatures of Virginia and Maryland, affecting the charter of the Chesapeake and Ohio Canal Company, so far as such assent might be deemed necessary to their validity.

On the 4th of August, 1828, the Potomac Company instructed the president and directors, forthwith to surrender their charter, and convey all their rights and interests to the Chesapeake and Ohio Canal Company. On the 15th of the same month, the surrender and conveyance were made, and on the 17th of September following, accepted by the Chesapeake and Ohio Canal Company.

Whilst these legislative and other proceedings were in progress, meetings were held in Baltimore, by a number of citizens of that place, on the 12th and 19th February, 1827, in whose printed proceedings, the advantages likely to accrue to Baltimore, from connecting her trade with the western states, by intersecting the contemplated Chesapeake and Ohio Canal within the District of Columbia, according to the route surveyed and reported by the board of engineers for internal improvement, and by a direct rail road from Baltimore to some eligible point on the Ohio river, are contrasted, and the saving of distance by such a direct road, stated to be 140 miles ; which proceedings formed the basis of an application (or memorial) which was preferred to the legislature, for an act to incorporate the Baltimore and Ohio Rail Road Company, by a committee appointed for that purpose. And on the 28th of the same month, February, 1827, the charter was passed. On the 8th of March, 1827, a law was passed by the legislature of Virginia, giving permission to the Rail Road Company, to extend their road through that State, but prohibiting its striking the Ohio, at a point lower than the mouth of the Little Kenawha, on the Ohio; and on the 2d day of March, 1831, permission was given them by an act of Congress, to extend a lateral road into, and within the District of Columbia.

On the 31st of March, 1827, the whole of the rail road stock was subscribed; and on the 23d of April, 1827, the company was organized by the election of its officers.

On the 20th of June, 1827, a reconnoissance of the country between Baltimore and the Ohio river, was commenced by engineers in the service of the Rail Road Company, with a view to the location of the road.

On the 28th of February, 1828, the legislature of Pennsylvania passed a law, authorising the Rail Road Company, to extend their road through that State, to the Ohio river.

On the 3d of March, 1828, the legislature of Maryland, in a supplement to the act for the promotion of internal improvement, authorised a subscription for five thousand shares of the stock of the Rail Road Company, on condition that the company should agree to locate it, so as that it should go to, or strike the Potomac river at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it should go into Frederick, Washington, and Alleghany counties.

On the 5th of April, 1828, the engineers who had commenced their reconnoissances on the 20th of June, 1827, made a report recommending a route for the road from Baltimore by the Point of Rocks, and up the valley of the Potomac. Being the very route by the Point of Rocks, which had before been surveyed with a view to the location of the canal, by the United States’ board of engineers for internal improvement; and again by Messrs. Geddes and Roberts, civil engineers, appointed by the general government for that purpose, whose report and estimates of the 7th of February, 1828, had then been made public.

The board of engineers in the service of the Rail Road Company, after examining the ground on horse-back, and without instruments, approved the report of the engineers of the 5th April, 1828, and their decision in favor of a route for the rail road by the Point of Rocks, and through the valley oí the Potomac to Williamsport, in a report of the 5th May, 1828; upon which report, the route by the Point of Rocks, and the valley of the Potomac was adopted by the company. Up to that time, no survey had been made in the valley of the Potomac, above and from the Point of Rocks, at the instance, or for the use of the Rail Road Company; and a bill was then depending in Congress for an appropriation to the Chesapeake and Ohio Canal, by a subscription to the stock of the company.

On the 12th of May, 1828, engineers were deputed by the president and directors of the Rail Road Company, lo pass along the route thus adopted from the Point of Rocks to Cumberland; and wherever the character of the ground was such, as to leave but little choice as to the location of the road, or to present but one passage, to make an actual location of the same at once over such ground ; in order that the actual locations so made, might serve as regulating points, for its subsequent locations over the intermediate sections, and secure the passage of the road. And at the same time, agents were deputed to take all necessary steps to procure title to, or a right of way over, the lands upon which such actual locations should be made. In pursuance of which instructions, the engineers proceeded to make surveys for the site of the road, at the places indicated, and as actual, partial, locations of it, from the Point of Rocks along the Maryland shore of the Potomac to Cumberland. And the agents employed for that purpose, entered into contracts with some of the proprietors, for the title to, or right of way over, their lands so surveyed, and commenced process of condemnation of other parcels of land, actually surveyed for the site of the road, with the owners of which, they were unable to make contracts for the title to, or right of way over.

In this state of things, the Chesapeake and Ohio Canal Company claiming to be then duly incorporated, and the Potomac Company (not having at that time surrendered its charter and transferred its interest to the Canal Company,) filed a bill on the equity side of the Washington County Court, on the 10th June, 1828, against the Baltimore and Ohio Rail Road Company, denying the right of that company to construct its road on the route it had adopted, and just caused to be partially surveyed, and laid down in the valley of the Potomac from the Point of Rocks to Cumberland, upon the Maryland shore; and asserting a prior and paramount right to the choice of a route for the canal, in and along the valley of the Potomac—and obtained an injunction, granted by one of the associate judges of that court, prohibiting and enjoining the Rail Road Company, its agents and attorneys, and all persons acting by its authority, from making any contracts or agreements with, or receiving any deed or conveyance from any person or persons whatsoever, for any lands or tenements lying within the bounds already so marked out, and surveyed for the said road ; and also the justices of the peace, and sheriffs of the cpunties of Frederick, • Washington, and Alleghany, from issuing or executing any warrants, for the condemnation of any such lands, until a reasonable time should have been allowed the Canal Company, for completing the actual surveys and definitive locations of the canal, and the further order of the' court.

That hill was not answered, but on the 28d June, 1828, the Rail Road Company filed a bill in chancery, against the Canal and Potomac Companies, referring to it, and praying an injunction, prohibiting those companies and each of them, and all persons acting under their authority, or the authority of either of them, from making any contract or agreement with, or receiving any deed, or conveyance, from any of the parties to the contracts before made with the agent of the Rail Road Company, for any lands, or any interest in any lands, owned, by them, or either of them, and lying within the limits of the actual location of the rail road, as surveyed and marked out by the engineers in the service of that company; and also prohibiting the justices of the peace, and sheriffs of Frederick, Washington, and Alleghany counties, from issuing or executing any warrant or warrants for the condemnation of any such land, for the use of the Canal and Potomac Companies, until the claim of those companies to a priority and right of election as set forth in their bill, filed in the Washington County Court, should have been finally heard and determined upon, or until the further order of the Court of Chancery.

On the 24th June, 1828, a second bill was filed by the Rail Road Company, for an injunction to protect rights, that it was supposed to have acquired under the proceedings that had been instituted by its agents, for the condemnation of such portions of the land surveyed for the site of the road, as they had been unable to make contracts with the owners for; and on the 25th of the same month, a third bill was filed by the same company, for an injunction to protect rights claimed to have been acquired to lands, by actual locations for the site of the rail road, but in relation to which, no contracts had been made, or proceedings for eondemation instituted—upon each of which bills an injunction . was issued, according to the prayer of it.

The complainant in neither of those bills of complaint, sets up any paramount right of election or pre-emption for the route or site of the road; but founds its claim to a right to construct the road in the valley of the Potomac, along the Maryland shore, from the Point of Rocks to Cumberland, upon the actual surveys it had caused to be made on that route, as partial locations of the road; upon the contracts made by its agents, with the owners of portions of the land so surveyed, for the title to, or right of way over them, and upon the proceedings instituted by its agents for the condemnation of other portions, in relation to which, they were unable to make any contracts with the owners. The three bills were afterwards consolidated, and on the 8th of May, 1829, the Canal Company having then received from the Potomac Company a surrender of its charter, and a transfer of all its rights and interests, put in its answer re-asserting a prior and paramount right to the choice of a route and site for the canal, in the valley of the Potomac, as claimed in the bill filed in the Washington County Court, to which there was a general replication-At the September term, 1825, after a previous argument, on a motion to dissolve the injunction, the injunction was continued by order of the chancellor, until final hearing; and on the final hearing at the September term, 1831, it was, by a decree of the chancellor, made perpetual. From which decree the case was brought by appeal to this court.

It appears that there are, between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, between forty and fifty miles of narrow, difficult passes, along which the canal, if made independently, and without reference to a rail road, will, from the character of the difficulties presented, have to be supported by embankments, constructed in the bed of the river, many feet beyond the usual low water mark; that should the Rail Road Company prevail in establishing a choice of location on that route, if it would not be impossible to construct the canal along those passes, after the most eligible ground had been occupied by the rail road, it could only be done with such difficulty, and at such an expense, as that no practical engineer would recommend it, and that the expense of constructing the canal, if taken out of the valley of the Potomac, would be so enormous, as in the language of one of the engineers, to render such an untertaking, “a canal impracticability.”

The question then presented for the consideration of this court is, whether the Chesapeake and Ohio Canal Company, has a priority of right, in the choice or selection of ground for the route and site of the canal in the valley of the Potomac. The decision of which question is approached, with a due sense of the extent, diversity, and magnitude of the interests involved, (reaching far beyond the confines of this State,) and the possible consequences both to the immediate parties and the community at large. Should the decision of this cause, have the effect to arrest the progress of the groat work, commenced by the party against whose claim it is pronounced, it will be a matter of regret. But it is the business of a judge to endeavor in every case that is brought before him, to arrive at a correct conclusion: and that done, to the conviction at least of his own mind, his duty, though sometimes an unpleasant, is a very plain one, and admits of no hesitating in the discharge of it. ,

Pi'oceeding then to the discharge of an obvious duty, as this case mainly depends upon the construction proper to be given to the several charters, under which, the rights asserted by the respective parties are claimed; and as the Canal Company claims to be entitled to all the rights and privileges originally granted to, and vested in the Potomac Company, it is necessary to inquire into the character and object of the charter of that company, and to ascertain what the rights and privileges granted were, (so far as concerns this controversy,) and how, and for what cause to be divested, and that charter being also the first in order in point cf date, it will be first examined; a correct understanding of which, will essentially aid in the construction of the charter of the Canal Company. One construction given to the charter of the Potomac Company, by the counsel for the Rail Road Company, and insisted on in argument, is, that the Potomac Company was not authorised to make a continuous canal, but was restricted to the improvement of the navigation of the bed of the river, with no power to make canals, except at the Great and Little Falls; and for that construction, the phraseology of the title, and of the 9th, 10th, and 17th sections, is principally relied upon. But that construction, it is believed cannot prevail, if the whole of the charter is examined together, and one part construed by another, (as every statute should be,) with a view to give effect and operation to the whole, if it can be done. In pursuance of which principle of construction, it is proposed to collate the title, with the preamble and the different provisions of the charter, having any relation to this point.

The charter itself is, “an act for establishing a company for opening and extending the navigation of the river Potomac,” and the preamble states, “that the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility;” and that “it may be necessary to cut canals, and erect locks, and other works, on both sides of the river.”

The 4th section authorises the president and directors “to agree with any person or persons, on behalf of the company, to cut such canals, and erect such locks, and perform such other works as they shall judge necessary for opening, improving and extending the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they shall think jit.”

The 9th section provides, that “in consideration of the expenses the said proprietors will be at, not only in cutting the said canals, erecting locks, and other works for opening the different falls of the said river, and in improving and extending the navigation thereof, but in maintaining and keeping the same in repair,” &c., the president and directors shall have a right, uat all times forever,” to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Payne’s falls, and at or above the Great Falls of the river, &c.

The 10th section declares, “that the river and the works to be erected thereon, when completed, shall forever thereafter be esteemed and taken to be navigable, as a public highway.”

The 17th section is in these words, “that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, &n., to and through the place which may be fixed on below the mouth of the south branch, for receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall he there received; that the toils herein before allowed to be demanded, and received at or near Payne’s falls, are granted, and shall be payable, on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection near the mouth of the south branch, to and through Payne’s falls aforesaid; that the tolls herein before allowed to be demanded and received at the Great Falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne’s falls to the Great Falls, by vessels drawing one foot; water, and from the Great Falls to tide water; and shall, at or near the Great Falls, make or cut a canal, twenty-five feet wide, and four feet deep, with sufficient locks if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make, at or near the Little Falls, such canal, and locks if necessary, as will be sufficient and proper, to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course.”

And by the 18th section it is enacted, “that, in case the said company shall not begin the said work within one year after the company shall be formed, or if the navigation shall not be made and improved between the Great Falls and Cumberland, in the manner herein before mentioned, within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through and from the Great Falls to tide water as aforesaid, within ten years after the company shall be formed, then shall all the interest of the said company, and all preference in their favor; as to the navigation and tolls, through and from the Great Falls to tide water, be forfeited and cease.”

It is very certain, that there is nothing in this charter* requiring of the company to make a continuous canal, nor is it insisted upon here, that any such duty was imposed. All that is contended for, is, that no specific mode of improvement was designed by the legislatures from which the charter emanated, and that, the sphere of the operations of the company was not restricted to the bed of the river, and to the canals required at the Great and Little Falls; but that, authority to effect the proposed extension of the navigation, either by means of a continuous canal, or by 'improvements in the bed of the river, with such occasional canals, and at such places, as might be deemed proper, and necessary to the accomplishment of the end contemplated.

The right to improve the navigation in the bed of the river, was clearly comprehended in the powers delegated to the corporation; and that seems to have been considered as the mode of improvement, which would probably be pursued. Upon which hypothesis, it may be inferred, the obligation (to be found in the 17th section,) to make canals at the Great and Little Falls was imposed, where it was believed, that no safe and adequate improvements could be made in the bed of the river. But the question is not, what it was supposed, would be the mode of improvement resorted to, but whether the operations of the corporation were limited to the bed of the river, or whether it had a right, in the practical exertion of its powers, to adopt any other plan, as it became instructed by experience, and aided by the light of science.

It is laid down in some of the books,' that in construing a statute, the title (being no part of it,) is not to be regarded, but we have high authority in this country for a different rule of construction—the opinions of the judges of the Supreme Court, as expressed in the United States vs. Fisher, 2d Cranch, 358. It is no where pretended, that the title can control the express words of the enacting clauses. Without stopping, therefore, to inquire how far the title of a statute may be regarded in the construction of it, but yielding to the title in this case, all the influence that can be claimed for it, it will be found not sufficient to sustain the construction of the charter contended for by the counsel for the Rail Road Company.

It is described in the title, to be an act “for opening and extending the navigation of the river Potomac,” and whatever might be the ordinary understanding of the terms, “the navigation of the river Potomac,” if considered independently and alone, the preamble which more fully discloses the object contemplated, and which is deemed to occupy so important an office in a statute, as to be called a key to its construction, explains the sense in which these terms were intended to be used, by the recital “that it may be necessary to cut canals, and erect locks and other works on both sides of the river,” and clearly shows, that the navigation proposed to be opened and extended was not intended to be restricted to the channel or bed of the river; but that by “the navigation of the river Potomac,” was meant a communication by the waters of the river, whether in the natural course, or by means of occasional canals, or both, as it might be found necessary—since the canals spoken of on both sides of the river, could only be necessary for the purposes of navigation out of the bed of the river; and are specified as works, that might become necessary, not for the purposes of canal navigation, as distinguished from the navigation of the river, but as necessary for opening and extending the navigation of the river itself.

It was no doubt expected, that improvements in the bed of the river, would be resorted to; but it was also apprehended, if not foreseen, that the object could not be effected throughout, in that way; and canals were suggested, as means that might become necessary, to the accomplishment of the scheme of opening and extending the navigation of the river.

If then the construction of the charter rested upon the title and preamble alone, with no other guide to the intention of the makers, there would be no difficulty in ascertaining what that intention was, if there were ambiguous expressions in the enacting clauses, requiring the aid of the preamble to explain them. Mot only, however, does the preamble sufficiently explain the sense, in which the words “the navigation of the river Potomac,” were intended to be used; but the 4th section conferred the express and unlimited power, “to cut such canals, and erect such locks, and perform such other works,” as should be judged necessary by the corporation, “for opening, improving, and extending the navigation of the river,” from tide water to the highest practicable point on the north branch, and “carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they should think fit.” Here then was distinctly granted the power to make canals, &c., for the purpose of “opening, improving, and extending the navigation of the river”—with no restriction, either as to the number, or kind of canals, locks, or other works, authorised to be made and performed, but such as might be prescribed by the judgment of the corporation, and the places, times, and manner of conducting the improvement were committed to its will, “for carrying; on the same, from place to place, and from time to time, in such manner as they shall think fit.” Thus manifestly showing, that to make the water of the river navigable by means of a canal, or canals, would be to malte the river navigable, in the sense in which the words were used—and showing alsoj that the manner of effecting that object, was referred to the judgment and discretion of the corporation.

The makers of the charter very well knew, that there were various modes of improving the navigation of a river, and that canalling was one ; but not being possessed of the means of determining which of the different modes was best adapted to the situation and character of the Potomac, prudently forbore to describe any specific mode, but committed the whole subject to the judgment of the corporation, regardless of the mode, provided the object was accomplished.

Under the authority thus conferred, looking to the 4th section alone, or in connexion with the preamble, can it be doubted, that the corporation might have adopted any plan of improvement, which in its judgment, was best adapted to the end proposed ? The language of that section is as broad as it could well have been ; without a word to restrict the operations of the corporation to the bed of the river, or to confine it to any particular mode of improvement. It might have resorted to improvements of the navigation in the bed of the river by sluices ; or to dams and locks. Both of which kinds of improvements, are comprehended in the terms “such other works.” Or it might have adopted the plan of opening the bed of the river, with occasional canals, under the authority to “cut canals, &c.” and having the power to “cut such canals as it might judge necessary” for improving the navigation of the river, and to carry on the improvement “from place to place, and from time to time, and is such manner as it should think fit,” why might not a continuous canal have been made? If at one time, it had made a canal to a particular point, and afterwards had “ thought fit” to make another, from that point to another point, joining the two together, in other words, elongating the first; and so on, from time to time, and from place to place, as it had “judged necessary” or “thought fit,” throughout the whole geographical extent of the charter, it would have been a continuous canal.

■ And could such a work have been deemed to be unwarranted by the charter ? It would have been an improvement within the letter of it: sueh as the corporation “judged necessary,” and “carried on from place to place, and from time to time,” in the “manner it thought fit.” Or suppose the corporation, “judging it necessary, and thinking fit” to do so, had made a number of canals at different places, between the two termini of the proposed extension of the navigation ; and afterwards from experience, “judging it necessary” to make other canals in the intermediate spaces, have “ thought fit ” to do so, and to unite them with those that were before made, it would have been a continuous canal, and what would there have been opposed to the legality of it. The corporation had an unlimited discretion as to the number of canals, and the time, places and manner of making them; no number was specified, no time was limited', no place or places designated, nor manner directed,, and having the right to make as many as it should “judge necessary,” and at such places as it should “ think fit,” the having made some at some places, did not prevent its making others, at other places, and- at other times; one place being as much within its discretion as another, and the making them from one to another of those that had been before made, being, the making of them “from place to place: ” and the joining them together being within the authority to make them in “ such manner as it should think fit;” there being notone word denying the right to do so ; and surely, there can be no difference in principle between the right to make a continuous canal, by constructing one piece at one time, and another at another time,, and in different places, as the necessity for it is discovered, and in such a manner, as ultimately to unite all the different parts, and to adopt at once, the plan of a continuous canal. They are in effect the same, each being refei'red to, and made dependent upon the judgment and will of the corporation,, by the unlimited terms in which its powers are expressed.

It is not enough to say, that the state of knowledge on the subject of canals, was not such at the date of the charter, as to justify the supposition that a continuous canal was thought of. at the time, and therefore as has been suggested, that the respective legislatures could not háve intended to confer the power to make such a canal. The state of knowledge certainly, was not then, what it is now; experience and the advance of science have shed much additional light upon the subject. But continuous canals were not unknown ; they were in practical operation elsewhere, and had been long before, though the extent of their superiority over other modes of improving the navigation of rivers, was not probably well understood; which was perhaps the very reason why such a canal was not expressly designated ; and may account for the unlimited discretion given by the charter; the makers and procurers of it, being unwilling for want of better information than was then generally possessed, to confine the corporation to any specific mode of improvement. Nor can any inference against a grant of power to make a continuous canal, be drawn from the limited amount of the capital, provided by the second section, as is supposed, since the sixteenth section authorises an indefinite extension of it, at the discretion of the corporation.

The 9th section contains nothing, adverse to the power to make a continuous canal. The right to demand and receive tolls was given, in consideration of the expenses the corporation would be at, “in cutting the said canals, &e.” What said canals? Not at the Great or Little Falls, or any other particular falls, but the canals before authorised by the 4th section, without reference to any falls; such as the corporation “should judge necessary for opening and improving the navigation of the river,” to be made and “carried on from place to place, and from time to time, and in such manner as it should think fit.” That is one of the enumerated probable subjects of expense, in consideration of which the tolls were allowed ; and the “erecting locks and other works, for opening the different falls of the river,” are others. Showing indeed that it was supposed, that different modes of improvement might be resorted to; but precluding neither, and excluding the idea, that the improvements were to be confined to the bed of the river ; and entitling the corporation to tolls, on the accomplishment of the object, the extension and completion of the navigation of the river, in either of the known modes, or by a combination of any of them.

The 10th section, in making “the river, and the works to he erected thereon, when completed, a public highway,” proceeds upon the same idea, that the navigation of the river, might be opened by a resort to different modes of improvement, and provides for the event of its being done in the bed, and by occasional works out of the river, by declaring both the river and such works, to be a public highway, which would equally cover the ease, of its being done in either of the different modes. If it had been effected by improvements confined to the bed of the river, the river, under that provision, would have become a public highway, though there were no works on the out side of it; and so, if it had been accomplished by a canal, altogether out of the river, with no improvements in the bed, that canal would have been a public highway. It could not have been intended, that to constitute the proposed channel of communication a public highway, there should be improvements both in the bed of the river, and upon the margin; and if either exclusively, would have been sufficient, so would the other. It was the channel of communication when completed, that was to be a public highway, no matter by which of the different modes.

But it is supposed, there is something in the 17th section, indicating the intention to have been, to restrict the corporation in its improvements, to the bed of the river, with the exception only of the points at the Great and Little Falls. There is no such express restriction to be found in that section. The most that could be gathered from it, is by a remote inference from general and ambiguous words construed alone; which would be a departure from the acknowledged rule, that in construing a statute, all the parts should be taken together.

The woi’ds of the 17th section which are relied upon, as proving the intention to have been to confine the improvements to the bed of the river, are, “that the tolls, &c. are granted, and shall be paid on condition only, that the saidf Potomac Company shall make the river well capable o being navigated in dry seasons, by vessels drawing one foot water, “from Cumberland, to and through a place below the mouth of the south branch, from thence to and through Payne’s Falls, from thence to the Great Falls, and from the Great Falls to tide water; the expressions, “shall make the river well capable of being navigated,” being considered as meaning, according to the ordinary acceptation of the terms, that the river should be made navigable in its bed or natural course. But would that be the ordinary acceptation of the terms ?

When we speak of navigating a river, without reference to the state or condition of it, ordinarily the navigating it, in its natural course is meant. But when the making a river navigable, (which was not so before,) is spoken of in general terms, without a designation of any particular mode of doing it, no particular mode is understood to be intended ; the making it navigable in its natural course, no more than the making it navigable in any other way, there being various modes of making a river navigable; and indeed, to say that such a river is made navigable, or may be made navigable by means of a canal, is a common mode of expression. It is therefore by no means clear, that the words of the 17th section, if standing alone, with nothing to explain the sense, in which they were used, should be understood, as requiring the river to be made navigable in its bed or natural course; but when taken in connexion with the whole context, it seems to be very plain, that they were used in no such restricted sense; and that by requiring the river to be made navigable, was meant the makingil navigable, in any of the known modes, in which the navigation of a river may be improved, and not exclusively in its bed or natural channel. It is stated in the preamble, that “it may be necessary to cut canals, and erect locks, and other works,” for extending the navigation of Potomac river; which shows the understanding of the respective legislatures to have been, that the extension of the navigation might be effected by making canals.

By the 4th section, the corporation was invested with power “to cut such canals, and erect such lochs, fyc.” as it should judge necessary, for opening,, improving, and extending the navigation of the river, “from place to place, and in such manner as it should think fit; ” and by the 11th section, authority was given to purchase or condemn lands, for the purpose of making such canals, &c. Here then is an express authority to open, improve, and extend the navigation of the river, by means of canals, locks, and other works; embracing the variety of modes, in which rivers are capable of being made navigable, and exclusively confined to neither.

With this explicit legislative exposition of the sense, in which the terms opening, improving, and extending, the-navigation of the river, were used, fixing the meaning imparted to that language, by the makers of the charter, to have been, that to make a navigable camal fed by the waters of the Potomac, would be to make the rives' navigable; how can it be said, that the 17th section in requiring the river “to be made capable of being navigated,” meant exclusively that the bed of the river should be made navigable ? Besides, under the 4th section, the corporation had an unlimited discretion, eo-extensive with the geographical limits of the charter, to make canals, “from place to place,” for opening, improving, and extending the navigation of the riverthere was not a spot from one terminus to the other, to which the exercise of that discretion was confined, nor from which it was excluded. But it had an express right to make canals, wherever it should think fit, and “from place to place,” along the whole route; which,is utterly at war with the construction claimed to be put upon the I7th section," and both cannot stand. For it will be observed, that the terms of the 17th section, cover the entire space between Cumberland and tide water; and if the construction contended for, of that section, could be sustained, if by requiring that “the river should be made capable of being navigated,” was meant that the bed of the river alone should be made navigable, to the exclusion of every other mode of improvement, except at the Great and Little Falls, where canals are required to be made, there would not be a spot left to the corporation throughout that whole distance, for the exercise of its discretionary power, to make such canals, &c. as it might judge necessary for opening, extending, and improving the navigation of the river,” and “from place to place, as it should think fit”—which would be a virtual repeal of so much of the 4th section. It would be to alter and narrow down the positive and express enumeration of powers contained in that section, by mere implication from ambiguous expressions to be found in the 17th. But when the two sections are examined together, and the language of the 17th, taken in the sense in which the 4th shows it to have been used, construing one by the other, as must be done, the intention is plainly seen to have been, that the river should be made capable of being navigated in any of the modes authorised by the 4th section. By which construction both will stand, and full effect and operation be given to every word of each. But without the aid of the 4th section, the conclusion of the 17th clearly explains the sense in which the preceding expressions were used. The words are these, “and shall make at or near the Little Falls, such canal, and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course,” one or the other. Thus presenting the alternative of making the river navigable by a canal, or of making it navigable in its natural course—and distinctly indicating, that to make navigable canals fed by the water of the river, would be, to make the river navigable, in the sense of the charter. And the language of the 18th section is, that “in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, then, &c.” What was here intended? Was it, that the river should be made navigable in its natural course, through, and over the Great Fallsl Certainly not; but that the navigation of the river should be completed by means of a canal, at or near the Great Falls,” as directed by the’17th section—otherwise the 18th section would have had the effect to abrogate so much of the 17th, as provides for the improvement of the navigation of the river at the Great Falls, by a canal out of the natural course. The same may be said of expressions contained in some of the supplements, which have been called in aid of a different construction; such, for instance, as the proviso in the 6th section of the act of this State of 1790 ch 85, relative to the application of the tolls, &c. to the improvement of the navigation of the branches of the river; “that no such application shall be made, until the main river from tide water, is cleared to Fort Cumberland.” The main river, how cleared? certainly not exclusively in its bed or natural course; because the 17th section of the original charter, expressly provides for the clearing or improving of the navigation, by canals at the Great and Little Falls—and the 4th section as explicitly authorises the doing so, from place to place throughout the whole distance from one terminus to the other. But cleared, in the sense of the original charter, that is, in either of the modes therein recognized, for the improvement and extension of the navigation ; and in reference to which, those expressions must be understood as having been used. And so of similar expressions contained in other supplements, all of which must be construed with reference to the original act. Nor can any adverse argument be drawn from the preamble to the act of 1802, ch. 84, reciting, that the object of the^charter had been accomplished; notwithstanding it appears, that no continuous canal had, at that time, been made. It does not profess to state, that the corporation was restricted to any specific mode of accomplishing it, or in what way it had been done; and whether effected by means of a canal or canals, or by improvements in the bed of the river, the object would equally have been accomplished.

But the act of November session 1811, ch, 208, which, gave to the corporation utke same power” to make canals on the branches of the river, that was given by the 4th section of the original act, to make canals on the river itself, plainly shows the understanding of the legislature of this State to have been, not that the corporation was confined in its improvements to the bed of the river, or that its power to make canals was limited to the points of the Great and Little Falls, as has been supposed in argument, but that it had a right to make them wherever it “should think fit,” without restriction. Otherwise the grant of power, to make canals on the branches of the river, was perfectly nugatory; since if the power given by the 4th section of the original act, was limited to the making canals at the Great and Little Falls, which are points of difficulty in the main river, “the same power”, could not be exercised on the branches.

So that the legislature, in giving to the corporation by the act of 1811, “the same power” to make canals in relation to the branches, that was given by the 4th section of the original act, in relation to the river itself, must have intended the same power “as expressed in that section that is, the power to make canals, wherever it should be deemed necessary. Considering the power there expressed, to he the power given, according to the unrestricted sense of the language used; and not altered or diminished by the 17th section, so as to reduce it to the power of making canals at the Great and Little Falls only.

Taking the charter then altogether, and construing one part by another, if there had been a canal or canals made along the shore of the Potomac, fed by the waters of the river, and capable of being navigated in dry seasons, by vessels drawing one foot water, the river would have been made navigable for vessels of that description, in the obvious sense, in which the language adopted by the respective legislatures was used; although not a drop of water was left to flow in the natural channel, not being required to be kept there.- The great object in view was, the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch ; and the means, such as might be considered by the corporation, necessary, and proper for the accomplishment of that object, whether by sluices, by dams and locks, or by canal navigation, which is apparent in the preamble, and is carried out into the enacting clauses. There is nothing in the charter, to restrict the operations of the. corporation to the bed of the river, and thus to alter or narrow the powers, expressly enumerated and granted in the 4th section; but the whole matter was committed to its judgment; and so that the end was accomplished, it was immaterial, by which of the means that were subject to its discretion. If this is the true construction of the charter, the Valley of the Potomac, from tide water to the highest practicable point of navigation in the north branch, was specifically appropriated, to the object contemplated,—and at the time the company was formed, or became incorporated, it acquired a vested right, (not the actual legal title to the land,) but a vested right to acquire land by purchase or condemnation, along the shores of the river, to be exerted wheresoever .and whensoever it should be thought necessary and proper for the purposes of the charter. The object being an extension of the navigation of the river, by such means as should be found best suited to the purpose, corresponding powers were given to the corporation. .

It is apparent throughout the charter, that it was supposedthe bed of the river would, or might be occasionally adhered to; and it was as clearly intended, that any canal or canals, that it might be thought necessary and proper to resort to, should be made along the shore or shores of the river—thus plainly designating the Valley of the Potomac, for the route of the contemplated improvement, and dedi- ‘ eating the river and its shores, to that object. This is manifested by the preamble reciting that, “ the extension of the navigation of the Potomac river will be of great public utility,” and that “it may be necessary to cut canals, <y-c. on both sides of the river,” which could only be done in connexion with the river, by making the canals in the valley; by the 4th section, giving the power to make canals and any other improvements (in, or out of the bed of the river,) wherever it should be thought necessary and proper, for opening and extending the navigation, from tide water to the highest practicable point on the north branch. Thus by confining each end of the proposed extension of the navigation, to a point upon the river, one at tide water, and the other on the north branch, requiring, that in whatever way effected, it should begin and terminate upon the river; and pointing to the valley of the river, from one extremity to the other of the intended improvement, for the location of the canals authorised to be made; as the river itself, if any where resorted to for the purpose of being navigated in its natural course, could not in the nature of things, be used in connexion with any canal or canals, not constructed upon its borders, or within the valley.

By the 9th section, which in consideration of the expense of cutting canals, erecting locks, and other works “ for “opening the different falls of the river,” and of improving and extending the navigation thereof, vests such canals and works in the proprietors of stock and their heirs, and entitles the corporation “to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Paynes’ Falls, and at or above the great falls of the river Potomac for all commodities transported through either of these places ; ” thereby plainly in ■ dicating the valley of the river, for the construction of the canals and others .works—works for opening the falls of the river, being evidently works to be erected in the valley of the river; and the places designated for the demand and receipt of tolls upon commodities passing through them,, being points upon the river.

By the 10th section, declaring “that the said river, and the works to be erected thereon, when completed, shall forever thereafter, be esteemed, and taken to be navigable as a public highway.” The works to be erected upon the river, and on the supposition, that the bed of the river would be occasionally used, the river and the works to be one continual highway; which could not be, unless the works were to be - constructed in the valley, so as to admit of a connected navigation with the river.

By the 12th section, giving authority to the corporation to acquire land by purchase or condemnation, at the different places before designated on the river, for the demand and receipt of tolls, for the purpose of erecting toll houses; the very purpose and object of which, would require them to be built on the line of the projected extension of the navigation ; and the authorising them to be built at certain points upon the river, indicating the valley as the route of - that line, whether accomplished by improvements in the bed of the river, or by canals, &c. along the river, or by both; and by the 17th and 18th sections, the former requiring as a condition precedent to the right, to demand and receive tolls, that the river should be made navigable from the upper terminus, to and through a place below the mouth of the south branch, thence to and through Payne’s Falls, thence to the Great Falls, (the several places on the river before designated for the receipt of tolls, and the erection of toll houses,) and from the Great Falls to tide water, the other terminus; and requiring a canal to be made at the Great Falls, and also a canal at the Little Falls, or the river to be rendered navigable in the natural course; and the latter providing that, if not done within the respective periods therein prescribed, in the manner, and from and to the places specified in the 17th section, the corporation ‘‘should not be entitled to any benefit, privilege or advantage under the charier, and that “all its interests, &c.” should “be forfeited and cease;” Thus, by requiring the proposed improvement, (by whatevei means accomplished,) to be made throughout its whole course, from one point upon the fiver to another, and requiring also canals to be made at Specified points upon the river, (the Great ami Little Palls,) distinctly confining it to the valley of the Potomac, and designating and appropriating that region, as its route. The 13th and lfith sections might also (if necessary,) be resorted to, for the purpose of showing the intention, that any cañal or canals, which it might be thought necessary to make, should be constructed along the river, and of course in the valley. And the supplemental act of this State, passed at the November session, 1785, speaking of the canals to be made at the Great and Little Falls, “supplied by the current of the river,” and “communicating again with the river by locks, if necessary,” and the further supplementary act, passed at the November session, 1811, giving to the corporation, the same powers to acquire and condemn lands, for the purpose of making canals, upon the branches of the river Potomac, as those conferred by the 4th, 11th, and 13th sections of the original act, for “making canals on that river,” explicitly show, what was the understanding of the legislature of Maryland, in relation to the location of the contemplated works.

The valley of the Potomac being thus marked out for the Sphere of the operations of the Potomac Company, without restriction to any particular mode of improvement, the corporation had a right to select in the first instance, either of the various modes of improving the navigation of the river, and if that tailed, or proved insufficient, to resort to another, and so on, until the object of its incorporation was effected. It Avas not not put to an election between the different modes of improvement; nor concluded by any selection it might make, from having recourse to another, if that should fail. Such a construction of the charter would be too narrow for the great object in view. It cannot be believed, that the respective legislatures intended to limit the powers of the corporation, to any experiment it might make, in the prosecution of a Avork of such great and acknoAvledged public utility, the means of accomplishing which, were then but little understood in this country; and to deny to it, the right of completing it in any other way, if such experiment should fail; and thus to defeat the whole project, after heavy expenses had been incurred, in an honest, but unsuccessful effort to accomplish it, and at a time too, when a knowledge of the best and most effectual mode of doing it, could only, have been acquired from lessons of experience; ^he scheme itself being but an experiment, and that a hazardous one to the undertakers.

It is believed, that no company could have been found, with such an understanding of the charter, and that there is nothing to be found in it, to sustain such a construction. But on the contrary, that the whole subject was committed to the judgment, discretion, and experience of the corporation; with power to execute the work, in such of the various modes, as might in its progress be found to be most expedient; and that this is fully proved by the express provisions of the 4th section, authorising the corporation to “cut such canals, and erect such locks, and perform such other works, as it should judge necessary for opening, improving, and extending the navigation,” “from place to place, and from time to time,” “and in such manner as it should think fit.” Thereby embracing all the different modes of improvement, and empowering the corporation, not merely to elect one particular mode, but to resort to any of the various modes, at such places, and at such times, as from experience, aided by the advance of science, as should be found necessary in the prosecution of the work, though begun on a different plan.

More than forty years having elapsed from the date of the charter of the Potomac Company, to the time of its surrender to the Chesapeake and Ohio Canal Company, it has been suggested, but not seriously pressed in argument,-(as it could not well have been) that, if the Potomac Company had originally the right to make a continuous canal, and to procure the condemnation of lands for that purpose, that right, as well as any other right to condemn lands, and make canals, which was never exercised, had become lost and forfeited by non-user for so long a period. A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings instituted for that purpose, at the instance of the government, and that no cause of forfeiture can be taken advantage of, collaterally or incidentally ; and the same principle applies, as well to a question of forfeiture of a particular franchise, as of the whole. Nor is it every non-user, that will furnish a sufficient ground for a judgment of forfeiture. Here, there is no pretence for the assertion of such a cause. The right to improve and extend the navigation of the river, was a franchise granted; the manner of doing it, a mode of exercising that franchise. And there being various alternative modes authorised by the charier, subject, each of them, to be changed at the will of the corporation, no experimental trial of one of those modes, could work a forfeiture of the right to resort to either of the others, during the continuance of the charter. So long as the charter remained in force, there could be no forfeiture of the right to exert the franchise, in either of the authorised modes, which still remained to be tried; but all the rights and powers it conferred, continued in like manner, and so far from there being any ground for a forfeiture of the charier, by non-user, the very employment of some of the authorised modes of improvement, was a practical exereise of the franchise. But considering the right to make a canal or canals, and to condemn lands for that purpose, as a particular franchise, and not a means only of executing the general power to improve the navigation of the river ; the not having resorted to that mode of improvement, did not amount to a cause of forfeiture on the ground of non-user, the power given to the corporation by the 4th section of the charter, to make canals,” from place to place, and from time to time, and in such manner as it should think fit,71 being altogether indefinite both as to place, and time, and leaving it expressly and entirely in the discretion of the corporation, to make such canal or canals as it should judge necessary, wheresoever and whensoever it should think proper. And the fact, that other expedients were in the first instance resorted to, and for a long time persevered in, cannot be tortured into an abandonment, or any thing equivalent to a surrender of the right to, make a canal or canals, whenever such expedients should be found inadequate to the purpose intended, and a canal or canals should be thought necessary to the accomplishment of the object.

If then, the powers originally imparted to the Potomac Company by the 4th section of the charter remained unimpaired, that corporation, under the authority “to make such canals as it should judge necessary from place to place, and from time to time,” had a right, at any time it should think proper, during the continuance of its charter, to make a ca-' nal or canals along any, or all of the difficult passes upon the river, which form the subject of this litigation; or at any other place or places in the valley, and to purchase or condemn lands for that purpose. And its charter, according to the decision of the Supreme Court in the case of the Trustees of Dartmouth College vs. Woodward, 4th Wheaton 518, being a contract between the states of Maryland, Virginia,and. the Potomac Company, the obligation of which" could not, without the assent of the corporation, be impair-, ed ,by any act of the legislature of either of the States, nor the concurrent acts of both, consistently with the constitution of the United States, declaring that, no State shall pass any “law impairing the obligation of contracts;” the charter of the Rail Road Company, could not, without impairing the obligation of that contract, abolish, take away, or diminish the prior and paramount right of the Potomac Company, tq select and appropriate by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper, along the borders of the river, either in terms, or by any construction of it, that would have authorised the Rail Road Company, without the assent of the Potomac Company, to occupy any of the difficult passes, or other places along the river, for the route and site of the road, in such a manner, as either to exclude that company from a priority in the choice of a site or sites for the construction of the works authorised by its charter, or in any manner to restrict and circumscribe it, in the exercise of its prior right of election. But such an occupation by the Rail Road Company of the valley of the Potomac, would have been a violation of the vested corporate rights and privileges of the Potomac Company, and the charter of the Rail Road Company, in so far as it purports to bo, or may be construed in derogation of those rights and privileges, is repugnant to the constitution of the United States, and void; there / being no difference in principle, between a law, that in terms impairs the obligation of a contract, and one that produces the same effect, in the construction and practical execution of it. And the Canal Company, as the assignee of the Potomac Company, stands in its place, and is invested with the same prior and paramount right, that was originally granted, and vested in the Potomac Company; the 13th section of the charter of the Canal Company, authorising a surrender by the Potomac Company of its charter, and a transfer to the Cuñal Company of all its property, rights, and privileges, &c. expressly providing, that “thereupon (that is upon such surrender and transfer, and acceptance by the Canal Company,) the charier of the Potomac Company shall be, and the same is hereby vacated and annulled, and all the rights and powers thereby granted, to the Potomac Company shall be vested in the company hereby incorporated,” of which it can no more be divested by any operation or construction of the rail road charter, than could the Potomac Company have been at the time of the surrender and transfer ; but it took them, and holds them, in all their integrity and force, as they were held by the Potomac Company, unimpaired by the rail road charier, Which upon the hypothesis, that the rights and powers specified in the 4th section of the charter of the Potomac Company, had not been altered or restricted, nor lost by that company, is not understood as being denied.

But it is contended, that if the Potomac Company did originally possess the power to construct a continuous canal, it had lost that power, and had no right to make any canal or canals, or to acquire any lands for that purpose, by purchase, agreement, or condemnation, at the time of the surrender of its charter, by the deed to the Canal Company of the 15th August, 1828, or at the date of the rail road charter ; and therefore, that the Rail Road Company, either as concerns the Potomac Company, or the Canal Company, in its character of assignee of the Potomac Company, has a right according to the true construction of its charter, to occupy the ground in controversy for the route of the road. Which is asserted upon the assumption, either that the whole of the work authorised to be done, must be taken to have been accomplished, within the times limited by the 18th section of the charter, and extended by the several supplementary laws of Maryland to the 1st January, 1813, and of Virginia, to the 1st January, 1820, and the power to have been thereby fully executed and at an end; or that, if it was not accomplished within the times limited, the franchise of the Potomac Company to make canals, and to acquire lands by condemnation for that purpose was forfeited, or had expired by lapse of time—and being gone from the Potomac Company, could not, upon the surrender of its charter, vest in the Canal Company, which is very plausible, and would be a full answer to the claim of the Canal Company, in the character of assignee of the Potomac Company, if the whole of the work authorised to be done, was in fact accomplished: for then, it must be conceded, the power would have been fully executed and at an end, or if the Potomac Company was, by lapse of time alone, and without the intervention of judicial proceedings, divested of the power to malee canals, and to condemn lands for that purpose.

But was there, or could there have been such a divestiture consistently with the principles applicable to questions relating to vested corporate rights ? Or was the whole of the work in fact completed, that was authorised to be done, and the entire object of the charter accompished ?

The provisions relied upon in the 18th section, are, that “if the navigation shall not be made and improved between the Great Falls and Fort Cumberland, in the manner herein before mentioned, (that is for vessels drawing one foot water in dry seasons, as specified in the 17th section,) within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through, and from the great falls, to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, at, through, and from the great falls, to tide water, be forfeited and cease.”

And it is supposed, that the object of the charter was limited to the improvement of the navigation of the river, (whether by canals or otherwise,) only so far as to render it capable of being navigated in dry seasons, by vessels drawing one foot water ; that the powers of the company were restricted to that degree of improvement, and that, whenever that object should be accomplished, the powers of the company would be spent—which is a proposition that must be maintained on the part of the Rail Road Company, to support the argument, that the powers of the Potomac Company had been exhausted, by a compliance with the condition contained in the 18th section, by reference to the 17th section, which is, “that the river shall be made well capable of being navigated in dry seasons, by vessels draw-one foot water,” within the times specified—otherwise supposing that object to haye been effected, or condition complied with, within the time limited, there still remained in that company under the 4th section, a discretionary power to extend the improvement of the navigation by a canal or canals.

But is that the true construction of the charter ? The extension of the navigation of the river Potomac, is asserted in the preamble, to be a work of great public utility, and the legislatures of Virginia and Maryland, are declared to be impressed with the importance of the object, and to be desirous of encouraging so useful an undertaking. The grand object, was a connexion between the Atlantic States, and the country west of the Allegany mountains, to be effected in part, by an extension of the navigation of the PotO‘ mac river; a work not merely of local, but of great national importance, and one which, from its character, and supposed magnitude, drew into exertion the combined action of the states of Maryland and Virginia. With such an object in view, is it to be supposed, that the legislatures of those states, intended to restrict the powers of the company they were incorporating, to the making the river, navigable for Vessels drawing one foot water only, an improvement so entirely inadequate to the end contemplated ? Was that the encouragement proposed to be given to so useful an undertaking? It cannot be believed, and it is but to propound the question, to find the answer. There was no motive, no imaginable necessity for such a restriction, and if intended to be imposed, those legislatures must have been but slightly impressed with the importance of the object. Construing the 18th section alone, without regard to any other part of the charter, and construing it most rigidly, it might possibly be tortured into such a meaning. But though the Potomac Company was a private corporation, the charter was a public act, granted professedly pro bono publico, and should be construed in such a manner, as to attain, as far as possible, the end proposed. Pierce vs. Hopper, Strange, 253, 258. New River Company vs. Graves, 2 Vern. 431. It would not be doing justice to the makers of the charter, in searching for their intentions, to look to the 18th section alone, for the narrowest possible construction of it; but that section must be construed together with the 4th, by which the general power of improvement was given, in order to arrive at the intention of the makers, and that both may stand, if consistently they can.

Looking then to the unqualified terms of the 4th section, that the president and directors shall have power, &c. “ to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending the navigation, and carrying on the same from place to place, and from time to time, and in such manner, as they shall think fit,” it is clearly seen, that the right was expressly given to the corporation, by that section standing alone, to improve the navigation by any means, and to any extent in its power, that the river and the region through which it passes would admit of, without limitation either as to manner, extent or time. With that unrestricted power, it might have contented itself, with making the river navigable in its natural course, or by means of a canal, or canals, for vessels drawing one foot water; or if from experience, that was found to be inadequate to the demands of an increasing commerce, it might have deepened the bed of the river, or any canal or canals that had been made; or if none were originally made, it might have extended the improvement, by a resort to canals, from place to place, and from time to time, as in its judgment, occasion should require, which would seem to have been the very object of the power, to make canals “from place to place, and from time to time;” or it might in the first instance, have resorted to the temporary expedient of making the river navigable in its natural course, for the immediate public accommodation, by vessels of small draft, and at the same time, have adopted the more extended plan of improvement, by a canal or canals; all which it is believed must be conceded, looking to the 4th section alone—and it is not perceived, that there is any thing in the provisions of the 18th section, declaring, that if the river was not made navigable within the respective periods therein mentioned, for vessels drawing one foot water, between the Great Falls and Fort Cumberland, and from the Great Falls to tide water, the corporation should not be entitled to any benefit, privilege, or advantage under the act, and that all the interest, Sfc. of the corporation should be forfeited and cease, which so abridged the general power specified in the 4th section, to make such canals as the corporation should judge necessary, and at such places and times as it should think fit, as to reduce and limit it to the mere power to make the river navigable for vessels drawing one foot water, and to terminate whenever that should be effected, without any express words of restriction; instead of the more extended power to make such canals, as might be found better suited to the purposes of useful and efficient navigation; and at such times, as the progressive improvement of the country, and consequent increase of internal commerce and intercourse between the two great sections of the United States, which it was the object of the charter to bind more closely together in interest and affection, might indicate a necessity for further improvements, and aid in supplying the means of carrying them on. If that was the effect of the 18th section, it took away by implication, the whole of the discretionary and more beneficial power given by the 4th, and virtually annulled that section. Such a construction and effect, could only be given to the 18th section, by rejecting the 4th from consideration, in violation of the rule, that every statute should be so construed, that no clause, sentence or word, shall be superfluous, void, or insignificant, if it can be prevented; which is loo well known and established, to render any reference to authorities in support of it, necessary.

Nor is there any necessity for such a rejection of the 4th section, in order to give effect to the 18th section, but both máy well stand. The requiring that to be done, which the corporation had before the undoubted right and power to do, the making the river navigable for vessels drawing one foot water, was by no means inconsistent with, or repugnant to the power to make further and more important improvements. It was only saying, that, that at least should be done, leaving the corporation in possession of the power given it by the 4th section, to do as much more as it pleased, but not less : and accommodating the navigation afterwards, to vessels of greater draft, (by whatever means effected,) would not have rendered it less “capable of being navigated by vessels drawing one toot water.” If it could have done so by deepening the bed of the river, or canals already made, (which cannot be doubted,) it might also have done it by making additional canals, where none had been made, there being no restriction perceived in the law itself, of one mode more than the other, but the general power, extending equally and without distinction to all; and for us to make such a distinction, would be to legislate, and not to expound the law as it is given to us. The idea advanced, that to draw off the water from the river, after it was made navigable for vessels drawing one foot water, into a canal of greater depth, would have been a violation of the charter, rests upon the supposition, that the operations of the corporation, except at the Great and Little Falls, were restricted to the bed of the river, and that it was hound, to entitle it to tolls, to make and keep the river navigable in its natural course alone: which we have already endeavored to show, is not consistent with the proper construction of the charter, but that the corporation had a right to make the river navigable, by means of a canal or canals, and to demand and receive tolls, although no water should be left to flow in the natural course.

Taking then the 4th and 18th sections together, it appears to be very plain, that the intention was not, by the provisions of the 18th section, to abridge the general power, explicitly given in the 4th, to improve the navigation to thp utmost extent within the means of the corporation, and in any mode, and at any time, and to limit it to the right only to make the river navigable for vessels drawing one foot water; but merely to enjoin as a positive duty, under pain of forfeiture, and to insure an early use of the river, though upon a limited scale, that it should at least be made navigable to the extent therein required, within the respective times specified; leaving the general discretionary power of further improvement unimpaired, in regard both to extent and mode, and to be executed at any time ; or in the language of the 4th section, “from time to time, as the corporation should think fit; ” aided by the tolls permitted to be received, and by the 4th section expressly authorised to be applied to that purpose, in these words, “and out of the money arising from the subscriptions, and the tolls, &c., to pay for the same, and to repair and keep in order the said canals, locks, and other works necessary thereto, and to defray all incidental charges.” Which of itself, abundantly shows the intention that the canals, locks, and other works so authorised, might be made and carried on, after the river should be rendered navigable from Cumberland to tide water, for vessels drawing one foot water; since that was, by the 17th section, expressly made a condition precedent, to the right to demand or receive any tolls; the canals, locks, and other works, and incidental charges, that were intended “ to be paid for, and defrayed,” in part, “ out of the money arising from the tolls,” could only have been such, as should be made, and occur after tolls were authorised to be charged, which was not until after the river had been made navigable for vessels drawing one foot water. To say it was intended, that the whole of the work authorised should be first completed, and afterwards paid for, with all the incidental charges, out of such tolls as might possibly be received, without a word in the law to that effect, would be a most strained construction. It could not have been known that a sufficient amount of tolls with the subscriptions, would ever be received to discharge the principal and interest of the sum expended upon the work, or that the corporation would be able to borrow money for carrying it on, about which, nothing is said in the charier. It is not there-, fore to be supposed, that any such speculation was indulged in; but the evident intention was, that the corporation might carry on the canals and other works from tíme to time, as it should be deemed necessary, and as its pecuniary means, arising from the subscriptions, and the receipt of the tolls, should enable it to do so.

The great and general ultimate object was the improvement of the navigation of the river, to the utmost extent commensurate with the means of the corporation, as they should accrue, and to which it should at any time choose to push it; with no motive for limiting the degree of improvement, which could not have been too extensive for the purposes contemplated. The special, and more immediate object, was a partial improvement, not committed to the discretion of the corporation ; but required under pain of forfeiture, to be completed as a positive duty within the times specified, upon the execution of which alone, without doing any thing more, the corporation was to be entitled to demand and receive tolls, and to all the benefits, privileges and advantages, proffered by the charter. If the river was not made navigable for vessels drawing one foot water, the corporation was to have no “benefit, privilege or advantage, under the charter;” in other words, the charter was to be forfeited; but if that was done within the time limited, then the whole of the charter was to remain in full foree; none of the franchises were to be forfeited, and the corporation was to have the benefit of demanding and receiving tolls; and the privilege, if it chose to exercise it, of making any further improvements in its power, according to any mode, and at any time it should think proper.

In this view of the subject, there was no inconsistency, or repugnancy, between the 4th and 18th section; no clause, sentence or word of either, was superfluous, void, or insignificant, but each section had its full effect and operation. Under the 18th section, the corporation was bound to make the river navigable from Cumberland to tide water, for vessels drawing one foot water at least, within the times limited, and it might have contented itself, with the discharge of that duty; and under the 4th section, it was not bound, but had authority to make any further improvements, in any mode or plan, and at any time, it might have executed that authority. But according to the interpretation of the charter on the part of the Rail Road Company, the 4th section, in regard to all discretionary power of improvement, whether in relation to, extent, mode, or time, was abrogated by the 18th section, when both might well have stood together, which is not sanctioned by any acknowleged rule of construction.

It is said to be “inconceivable, that the legislature could have intended to give to the company the power, after the navigation was completed in one way according to the requisitions of the charter, to complete it in another.” That might have been unnecessary legislation, if the charter is to he so understood, though not for that reason void. But it was not the meaning of the charter, thatthe navigation would then be complete, when the river should be made navigable for vessels drawing one foot water only, as it clearly would not. The intention of the makers was, to secure to the public the benefit of a partial use of the river in a reasonable time, by requiring under pain of forfeiture, an improvement to that limited extent at least, within the prescribed periods; leaving it to the corporation, and clothing it with sufficient power and authority for that purpose, to make at any time, what further improvements it could; the more extensive and complete the better; but not exacting as a duty, to entitle it to tolls, what it might be unable to accomplish, and what subsequent events have proved, it was not able to effect.— Nor is there any thing very astonishing, or calculated to excite surprise in this. It was exactly what a wise and prudent legislature would have done, not to restrict the powers of the corporation, to the smallest possible improvement suited to any useful purpose, which would have been inconsistent with the great end in view; nor to jeopard the whole enterprize, by requiring the work to be completed under pain of forfeiture, on the most approved,plan, and to the utmost extent, within a period that might prove too limited, for the means and capacity of the corporation;, nor to leave too much in the discretion of the corporation,, by omitting to require any thing to be done within a time limited; which discretion might have been abused by the corporation to the prejudice of the public. And, borrowed as it would seem, from that charter, the same policy of securing to the public, the benefit of a limited use of the river for the purposes of navigation, during the progress of a more extended plan of improvement, has been carried into the charter of the Chesapeake and Ohio Canal Company; the 13th section of which has this provision, “and it shall be the duty of the said last mentioned company, (the Canal Company) until every section of the contemplated canal shall be completed, so as to be used and enjoyed for the purposes of navigation, to keep the corresponding part of the river, in a proper state for navigation, and in good order as the same now is; and in default thereof, they shall be in all things responsible, in the same manner, as the Potomac Company is now responsible.’’

The different supplementary acts of this State and Virginia, to the charter of the Potomac Company, giving further time to that company, could only have been intended, (and cannot be otherwise construed,) to extend the time for completing that, which by the 18th section of the original act, was required to be done within the respective times therein limited. And that was, the making “the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from Cumberland to tide water,” and nothing more. There was no limitation of time for the exertion of the powers given by the charter, except that prescribed by the 18th section ; of necessity therefore, the supplements extending the time, had reference to that section, and to the particular work expressly required by it, to be done within the times limited.

The preamble of the act of this State, of 1802, ch. 84, reciting “that the object contemplated by the act of assembly for establishing a company for opening and extending the navigation of- the river Potomac, has been accomplished,n has been much relied on, to show the understanding of the legislature of Maryland to have been, that the object for which the Potomac Company was originally incorporated, was the making the river navigable in its natural course, for vessels drawing one foot water, except where canals were expressly required; no continuous canal having then been made. But, however that preamble might have been understood, taken alone, it is perfectly clear, when construed with the enacting clause, that, that was not the meaning of the legislature. The language of the enacting clause, immediately following the preamble is, “that the proprietors of shares in the said Potomac Company, their heirs and assigns, shall, and may demand, take, and receive tolls, at the several and respective places heretofore fixed by law, for the payment, and receipt thereof;” thus manifestly showing, that by the object stated in the preamble to have been accomplished, was merely meant, the performance of the condition imposed by the 17th section of the original act, precedent to the right to demand and receive tolls; that is, the making the river navigable for vessels drawing one foot water. And the particular object, required by the 18th section to be accomplished within the times specified, on pain of forfeiture of all “benejit, privilege and advantage under the actwith no reference whatever, to the general authority to make canals, &c. given by the 4th section, without any liznitation of time. And the conclusion of the same enacting clause of the act of 1802, ch. 84, is in these words, “and that all and every of the rights, interests, privileges and immunities heretofore granted to, or vested in, the said proprietors and Potomac Company, are hereby confirmed and established to them, their heirs, &c.” including the right and privilege to make a canal or canals, at any tizne; thus asserting and confirming the existence of that right, upon the assumption that the river had been made navigable for vessels draioing one foot, water.

The charter was not limited in its duration, but expressly made perpetual by its terms, defeasible only, on failure by the corporation, to accomplish within the time limited, what was required to be done by the 18th section. Which was a condition subsequent engrafted upon it, in defeasance of a vested franchise, on breach of which, if in point of fact, there was any act of forfeiture committed by the corporation, it might have been avoided, or forfeited, by scirefacias, or a quo warranto, if the states that granted it, had chosen to take advantage of the non-performance of the condition. But not having done so, the franchise endured, notwithstanding the breach of the condition. And it is like the grant of an estate in land, defeasible on the non-performance of a condition subsequent, strictly speaking, as if an estate be granted expressly upon condition to be void on the happening of a certain event. In such case, it is perfectly clear, that the estate is not defeated by the mere happening of the event, but that the law permits it to continue, beyond the time- when such contingency happens, unless the grantor or his heirs, take advantage of the breach of the condition by entry, &e. which cannot be done by a stranger. The proceeding by the government (the grantor,) for the breach of a condition subsequent, contained in a charter of incorporation, is by scirefacias, or quo warranto ; by an individual grantor (or his heirs,) of land, by entx-y.

A private corporation aggregate may be dissolved, by the death of all its members, or by the loss of an integral part, whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or a corpox-ation may be dissolved by a surrender to the government of its franchise, or by an act of the legislature repealing the act of incorporation, with the assent of the corporation; or it may be dissolved by a foi'feiture of its charter, through abuse or neglect of its franchises, as for condition broken; there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution. But such forfeiture must be judicially ascertained and declared, upon direct proceedings against the corporation for that purpose, in order that it might not be condemned unheard, for an imputed delinquency. Where there is no corporate body in existence, as where it has been dissolved by the loss of an integral part, or by surrender, &c. it would be not only useless, but absurd, to go into a court of law, to obtain a judgment of dissolution. But where there is an existing corporation capable of acting, but which has been guilty of an abuse, or negleet of its franchises, or the powers committed to its trust, amounting to a cause of forfeiture, such cause of forfeiture can only be enforced by scire facias, or a quo warranto, issued at the instance of the government creating the corporation, and cannot be taken advantage of incidentally, or in any other way, or by any individual; since the government, with which alone the contract arising out of the charter is made, may waive the breach of any condition of that contract, and cannot be made to enforce the forfeiture, whether it will or no, and when it may have sufficient reason for not choosing to do so. Until it does, and that by judicial action, and not by legislation, no individual or other corporation, can treat it as a forfeited franchise. This is the doctrine taught by the authorities—among which are, The King vs. Amery, 2 Term. Rep. 515. The King vs. Pasmore, 3 Term. Rep. 199. Terret vs. Taylor, 9 Cranch, 43. Dartmouth College vs. Woodward, Wheat. Rep. 518. Slee vs. Bloom, 5 John. Ch. Rep. 366. Same vs. Same, 19 John. Rep. 456. The Trustees of Vernon Society vs. Hill, 6 Cowans Rep. 23. McLaren vs. Pennington, 1 Paige's Rep. 102, and Angell and Ames on Corporations.

The opinion of that distinguished jurist Judge Marshall, which was used in argument, would be entitled to, and would receive thé highest consideration, if the question upon which it was given, arose in this cause. The substance of it is, that as the 11th section of the charter only authorised the condemnation of land, through which a canal was intended to pass, the condemnation must of course be before the canal was made; and therefore, that if after the canal had actually been made, and the making of it no longer rested in intention, there could be no condemnation of land on the sides of it; upon the principle asserted, that every law, which is to wrest from an individual his property without his consent, must bo strictly construed. The utmost extent to which that opinion could be used, would be to show, that wherever the power of the company to make a canal, had been exerted, it was expended and gone, and could not again be exercised by a further condemnation of land, at the same place. But the question presented here, is not whether the power of the Potomac Company to make canals, had, by being exerted, been executed, and was at an end; but whether that corporation retained the power to condemn land, and make canals, where none had before been made.

The penalty annexed to the breach of the condition in the first clause of the 18th section, was, that “the company should not be entitled to any benefit, privilege, or advantage under the act;” and in the last, that “all the interest, &c. of the company should be forfeited and cease.” Now, to lose all benefit, privilege, and advantage; or for all interest to be forfeited and cease, would be to lose the charter itself. To take away every thing a charter gives, is to take away the charter— and to have taken away all benefit, privilege, advantage, and interest, would have been, to take away every thing that this charter gave. A forfeiture therefore of the entire charter, together with the particular franchise to condemn lands and make canals, was the penalty prescribed.

The analogy between this, and the case cited of Agnew vs. The Bank of Gettysburg, 2 Harr, and Gill 478, is not pereeived. That was the case of a bank charter, of limited duration, which had expired by its own limitation, and with it, the corporation ipso facto dissolved; it wholly ceased to exist for any purpose; no corporate powers remained, no originally vested franchise to be divested, for none were given beyond the term of duration; and no act was necessary to be done, in order to avoid the charter, or dissolve the corporation. But this was a corporation in full life, with vested franchises, unlimited in their duration, and liable only to be divested, through failure to exert them to a limited extent, within a specified time—and although by matter in pais, it might perhaps strioti juris, have had no right to exert them; yet none could have questioned the right, but the States that granted the franchises, and with which the contract was made, and which alone could have resumed them, for breach of the condition, on a judgment of seizure—until which was done, the corporation continuing to exist, the power to exert the franchises granted, remained.

Suppose for any cause, the rail road, or canal, should not be completed within the time prescribed by its charter; would it be contended that the charter was ipso facto forfeited, and the corporation dissolved without any judicial proceedings being instituted for that purpose, and that the State could thereupon grant the same franchises to another company? It is however conceded, that at the date of the surrender and transfer to the Canal Company, this was a subsisting corporation, with corporate rights, and the power to exercise them; and it is said, it must now be taken, that the river had then been made navigable for vessels drawing one foot water. If so, every benefit, privilege, and advantage, under the act, remained; and among them, the privilege of condemning land, and making a canal or canals, at any time; which the corporation was free to exert, where - and when, and how it “should think fit,” within the desig-■ nated region. The expressions, benefit, privilege, advantage and interest, used in the 18th section, applied as well to the' right to demand and receive tolls, and to make the river navigable in the natural course, as to the right to condemn lands for a canal or canals. The terms equally embraced all the rights and powers of the corporation; if one was to be forfeited, all were to be forfeited; if a term was prescribed for the duration of one, the same term was prescribed for the duration of each. There was no distinction, no exception of one, more than another from the operation of that section. And evidence of their understanding of the 18th section, is furnished by the acts of the legislatures that granted the charter; which show, that they did not consider the franchise as one that was to expire by its own limitation, but viewed and treated it, as a question of forfeiture altogether. Not as a grant of the right or franchise for a limited time, to condemn lands and make canals, but as a grant of the franchise for an indefinite time, subject to a defeasance, and that the object of the different acts passed for the extension of the time limited by the 18th section, was to guard the corporation against the liability to a forfeiture for a breach of the condition.

The 2d section of the act of Virginia, passed in November, 1793, for extending the time limited by the 18th section of the charter, has this provision, “and that no privilege or advantage granted by law, shall be forfeited or lost, in, ease the navigation aforesaid shall be finished within the time hereby limited.” The 3d section of the act of this State, passed at the November session, 1794, ch. 29, for the like purpose, has the same provision, and the provision of the 4th section of the act of this State, passed at the November session, 1797, ch. 93, is in the same words.

The act of 1814 of this State, ch. 75, giving to the company the power to acquire land, by purchase, compromise, or exchange only, which is relied on to show, that the power before granted to acquire land for constructing canals, was considered by the legislature as gone, and extinguished, does not seem to have been correctly attended to. It declares that the company “shall be, and they are hereby, authorised and empowered, to use and dispose of the land and water rights, now held by the said company, or which they may hereafter acquire in this State, in the erection of mills,” &c., “and shall be authorised and empowered to acquire lands and other property, contiguous to the land, canals, and locks on said river, by purchase, compromise, or exchange, &c. No authority had before been given to the corporation to acquire land in any way, except for the purpose of constructing canals and building toll houses; and the authority given by this last act to acquire land, was not for the purpose either of constructing canals, or building toll houses ; but it was an authority to acquire lands contiguous to the canals and locks on the river, for the purposes, as it would seem, of the mills, or other water works, which the same act authorised the corporation to erect. It was therefore an entirely new power, not given, because the power before imparted had departed from the corporation; but for a purpose, foreign from that, for which the power to condemn land had before been given. It was therefore a necessary power, for the purpose for which it was conferred, though the former power to acquire land by purchase or condemation remained in full force; since under that former power, no lands could have been condemned contiguous to canals already made, for the purposes of mills or other water works; and it affords no inference that the former power, was considered as having ceased. But as it speaks of water rights thereafter to be acquired, it would seem to imply, that the right to make canals still existed, which was a means of acquiring water rights, and that, after the expiration of the time last limited by the acts of this State.

On the 29th of January, 1821, the legislature of Virginia passed an act authorising the appointment of commissioners, to ascertain among other things, whether the terms and conditions of the charter had been complied with; and if not, to advise and consult with commissioners to be appointed on the part of this State, as to the measures best to be recommended to, and conjointly adopted by the two States, either for giving aid to the company in the further prosecution of the work, or for the institution of a prosecution against it, for the purpose of annulling and vacating the charter—and in the course of the same session, the legislature of Maryland passed a resolution for the appointment of commissioners to make the same joint inquiry ; substituting only, for the measure of instituting a prosecution, the alternative of adopting measures for the more effectual improvement of the navigation by some other means. Thus we have the sense of the States that granted the charter, clearly expressed by the concurrent acts of their respective legislatures, after the expiration of the last extension of the time limited by the 18th section, that if the condition (calling it and treating it as a condition, and not a limitation,) had not been complied with, not that the franchises had therefore expired, and that the corporation was dissolved, but that it continued to exist, in the possession of the corporate powers originally given to it, and that until it was dissolved by judicial action, it might, with sufficient pecuniary aid, go on to do the work originally authorised; with the opinion cf the legislature of Virginia plainly indicated, that the breach of the condition could only be taken advantage of by direct proceedings at law, instituted for that purpose, and the unwillingness of Maryland to adopt so harsh a measure.

And finally, the two States upon whose pleasure alone, the continuance of the corporation, and of its franchises depended, (both of them interested as stockholders, and Maryland largely as a creditor,) and which had a right to waive the breach, by any non-feasance or mal-feasance of any implied or expressed condition contained in the charter, having virtually waived the breach of the condition by the corporation in failing to exert its franchises, by the act to incorporate the Canal Company conclusively remitted to the Potomac Company any abuse, or neglect of its franchises, or any of them; and recognized and treated it as a subsisting corporation, in the full possession of all its original powers, in requiring its assent to the charter of the Canal Company, in order to give it validity; and by declaring in the 13th section of that charter, that upon the surrender and transfer by the Potomac Company to the Canal Company of its charter, all the rights and powers thereby granted to the Potomac Company, should be vested in the Canal Company, which included the right and power to condemn land for canals. Not the rights and powers, then held by the Potomac Company, but all that had been granted, and which must have been considered as then subsisting, otherwise they could not so pass and vest. Which shows the intention and meaning of the 18th section; and it is not denied, (as it cannot be,) that in construing a statute, a subsequent law upon the same subject, may be resorted to, for the purpose of ascertaining the intention, which when discovered, must prevail; all statutes in pari materia being construed as one law. But whether this view of the subject is correct or not, and independent of any corporate rights and privileges derived from the Potomac Company, a priority of right in the choice of a route for the canal in the valley of the Potomac, is claimed on the part of the Canal Company, by the force and effect of its own charter, viewed as a compact between the States of Virginia and Maryland, and the Congress of the United States, and between those sovereign parties and the Potomac Company. Which leads to an inquiry into the. character and effect of that instrument.

A State may contract with an individual; and it is equally certain, that two or more of the States, may enter into a compact or agreement inter se; and the only question upon that subject is, whether that has been done in this case— which involves the further question, (if a question it can be at this day,) whether a State can contract by an act of its legislature. That it can so contract with an individual, is settled beyond all controversy by the decisions of the Supreme Court, in Fletcher vs. Peck, 6 Cranch. 87. The State of New Jersey vs. Wilson, 7 Cranch. 164. Terrett, vs. Taylor, 9 Cranch. 43. The Town of Pawlet vs. Clark and others, 9 Cranch. 292; and Dartmouth College vs. Woodward, 4 Wheat. 518; and that two or more of the States may contract in that form inter se, is settled by the same court in Green vs. Biddle, 8 Wheat. 1, which was the case of a law of Virginia, relating to the separation of the district of Kentucky from Virginia, and the erecting that district into a separate State, containing this clause, “ that all private rights, and interests of lands within the said district, (Kentucky) derived from the laws of Virginia prior to such a separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State.” Which being afterwards ratified by a convention of the people of Kentucky, and made an article of the constitution of that State, it was held to be a compact between those States, the obligation of which, Kentucky could pass no law to impair. How then does this case stand ? Virginia, impressed with the importance of that subject, but knowing that the object could not be accomplished by any act of its own legislature alone, nor by its sole authority, passed the act for the incorporation of the Canal Company, in January, 1824, requiring in terms, the assent of the legislature of Maryland, of the Congress of the United States, and of the Potomac Company, to its provisions, to give it effeet and validity so far as concerns the eastern section of it, to which only, this suit relates. Maryland, treating it as a proposal offered for acceptance, assent, and confirmation, by an act of its legislature, passed on the 31st January, 1825, declared it to be “ accepted, assented to, and confirmed.” The Congress of the United States, by the act of the 3d March, 1825, declared it to be “ ratified and confirmed,” and on the 16th May, 1825, the Potomac Company, by a corporate act, signified and declared its “ assent” to it, and to all its provisions.

There are no technical words necessary to constitute a compact, or contract, which are convertible terms; and neither need be used, and seldom is, in the instrument creating it. It is a mutual consent of the minds of the parties concerned, respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne; “a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other,” and any words manifesting that congregatio mentium, are sufficient to constitute a contract. Here we have the very language of contract, in the terms “accept,” and “assent to.” It is the language used by the parties to a compact of the most solemn and imposing character. , The 7th article of the constitution of the United States, provides, that “ the ratification of the conventions of nine States, shall be sufficient for the establishment of the constitution between the States so ratifying the same; and the language used by the conventions in their acts of ratification, is, “ assent to and ratify,” “ assent to, ratify, and adopt,” “ agree to, ratify, and confirm,” “ approve, assent to, ratify and confirm,” and the amendments proposed by Congress in 1789, were ratified by acts of the legislatures of the respective States, using the language, “ratify,” “assent to, and ratify,” “ confirm and ratify,” “ assent to, ratify, and confirm,” &c.

■ The constitution to which validity and effect, to which vitality was imparted, by those expressions of assent, became not a mere confederacy, or league, but a compact, in the language of the constitution, “between the States so ratifying the same," as soon as it was so ratified by the number required by the 7th article ; by which, they were reciprocally bound, that there should be such a government of the Union for the benefit of the whole, with the assent of the people, and proceeding from them, as that, provided by the constitution. And when the federal government was organized and brought into existence, which is a creature of the constitution, possessed of the rights and powers it confers, and subject to the duties it prescribes and enjoins, it became also a compact between the parties to it, and the federal government.

In this case, there were mutual interests in the subject matter of the reciprocal acts of the two States and of Congress, with an acknowledged authority to contract; and the legislature of neither of the States, could have performed by any separate act of legislation, what was proposed to be accomplished by the concurrent acts of all. One terminus of the canal is proposed to be in the District of Columbia, and the other in the State of Maryland; and Virginia could not of its own authority, by any separate act, authorise a canal to be made through Maryland, nor could Maryland authorise a canal to be made through Virginia, without its consent, nor could either or both of them, authorise one to be made in the District of Columbia, without the consent of Congres; Maryland and Virginia were interested in the Potomac Company; both, as stockholders, and Maryland largely as creditor, and both of them, and also the United States were interested in the river, and the works erected by the Potomac Company, as a public highway. Neither of the States therefore, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of that company, nor have received, or authorised the surrender of it, and of the works, to another company. Neither State could have authorised the condemnation of land, nor the imposition and collection of tolls within the territory of the other, without the consent of that other ; nor could either or both of them, have authorised either to be done within the District of Columbia without the consent of Congress. The 14th section, declares “ that the said canal, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway.” Not, that the part in Virginia, shall be a highway there, nor the part in Maryland, a highway in Maryland; but the entire canal shall be one continued connected highway, through the respective territories of the three sovereigns; and neither of the two States could have made a public highway through the territory of the other, without the consent of the other; nor neither or both of them, through the District of Columbia, without the consent of Congress. Yet all this, wearing the features of a conventional arrangement, has been done by the reciprocal and concurrent acts of the three sovereigns ; with other stipulations and reservations of rights, impressing upon those acts the qualities of a compact.

The 9th section declares, that the canal and other works “ shall be forever exempt from the payment of any tax, imposition, or assessment whatsoever.” Now ordinarily, Congress and each State has a right to impose taxes within its own jurisdiction, and neither has the power to deny it to the other. What then, is that renunciation of the right to impose taxes, but a stipulation or agreement between them, that neither will exercise that right ? And the 14th section provides, that no other toll or tax for the use of the canal and works, except those authorised by that act, “ shall at any time be imposed, but by consent of the said States, and of the United States.” Is not that an agreement or stipulation, that neither will authorise the imposition of any further toll or tax, even within its own territory for the use of the canal, without the consent of the others ? There is a stipulation in the first section, that Congress and each of the States shall appoint commissioners for taking subscriptions to the stock, and' carrying the act into operation. Not to act separately, as if it were a separate law of Congress, and of each of the States; but to act conjointly for carrying it into effect, as the united act of «all—and the stipulation for the appointment of commissioners, could only have been an agreement between themselves, as the corporation was not then in existence, and was only to be brought into existence by the agency of their joint commissioners, as a creature of their joint creation. In the 20th section, there is a provision for reserving to each State, the right to charter another company, in case the western section of the canal, should not be completed within the time limited. And in the 21st section, there is a reservation to eaeh of the States, of the right to make lateral canals, to be fed by the waters of the Potomac; and to the government of the United States, to extend the principal canal through the District of Columbia, with a provision that before the act should take effect, Congress should authorise the two States, or either of them, to take and continue a canal from any point of the principal canal, through the District of Columbia, &c. (which was done by Congress in the act of March, 1825, and the unnecessary explanatory section of the act of 23d May, 1828.) There is also in the 21st section the further provision, “that in taking or extending such lateral canal or canals through the District of Columbia, by either of the States, no impediment or injury be done to the navigation of the Chesapeake and Ohio Canal.” And are not those reservations and provisions, mutual stipulations or agreements, that each shall have and enjoy the rights and powers reserved and conceded, and that neither of the States, shall make any lateral canal or canals to the prejudice of the navigation of the principal canal? We have moreover the understanding of the parties themselves, of the character of this act of incorporation.

The 1st section of the act of December session, 1826, which is an act for the amendment of the act of incorporation, after reciting, that it had received the assent of Maryland, Congress, and the Potomac Company, declares that it shall be amended, See. “on condition that this act receive in like manner, the assent of the necessary parties thereto.” And the 4th section, “that this act shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company,” showing them to be the parties alluded to as the necessary parties. It did receive their assent, and became a part of the charter. It does not in terms call that act, or the original act, a contract, but it uses equivalent expressions, “receive in like manner, the assent of the necessary parties;” parties to .what? not to that act, as a separate, and independent act-of the legislature of Maryland: that could not be; neither of them could be a party to it, as a mere law of Maryland. It was only in the character of a compact, that they could become parties to it; and being parties to the original charter, which that act proposed to amend, they were necessary parties to that act, and the assent to that act, by all the parties named, was a recognition of the necessity for their concurrence as parties to it; in order to give it the effect to alter, or in any manner modify the original act—and the same may be said of the act of the December session, 1827.

There were mutual interests, advantages, and rights, reciprocally conceded and compensated, by the concurrent acts of Virginia, Maryland, and Congress, constituting the original charter, which by any fair test that can be applied, is believed to be a compact between the two States and Congress, a reciprocal pledge of public faith, that there should be a corporation, the creature of that compact; created, not merely for its own benefit and advantage, but to effect a great national object, in which all were concerned, for the common benefit and advantage of all, and for the public good; and that whenever the corporation should be brought into existence, it should be invested with all the privileges, rights and powers, provided by the charter, for the accomplishment of the end contemplated, without any diminution or alteration of the franchises as therein expressed. There is no acknowledged necessity, for any stronger, or more technical terms, to constitute a compact between two or more states, than between a state and an individual; and the terms here used, would be quite sufficient to constitute a contract between a state and an individual. Indeed this very charter being a grant, is an implied contract with the corporation, not to re-assert the rights it has granted.

It has been intimated, rather than seriously argued, that under the provision of the constitution, “that no state shall, without the consent of Congress, enter into any agreement or compact with any other state,” this charter is inoperative as a compact between the two states, for want of the constitutional assent of Congress.

The assent of Congress to the provisions of the charter, is required by tbe 23d section, to be given “as the legislature of the District of Columbia.” The consent of Congress could not have been given as the legislature of the District of Columbia. It has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of the legislature of the Union, (in which capacity its assent was given to this charter,) and no state, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress to it, as the legislature of the Union.

There is no particular form, in which the assent of Congress is required to be given, and it is not material in what form it is given, provided it is done. Here is an act, proposing to create a corporation, with all the necessary rights and faculties for making a canal, to terminate in the District of Columbia, to which the assent of Congress, a party in interest is required to give it validity, and Congress ratifies and confirms it, so far as may be necessary, for enabling any company formed by the authority of that act of incorporation, to carry into effect its provisions, in the District of Columbia; and is not an assent to the provisions of the act being carried into effect in the District of Columbia, by a company to be formed under the authority of the act, an acknowledgment of its authority, an assent to the act itself, and to the creation of a company, with all the powers proposed to be given to that company, for executing its provisions? The act does not provide for the making a separate canal in the District of Columbia, nor did Congress intend so to restrict the company; but to authorise an extension into the district of the canal indicated by the provisions of the act, and by the means the act prescribes; and the assent to the extension of the canal into the district, was a recognition of, and an assent to the whole scheme of the canal itself, and of the provisions for making it. And thus Congress, by the very act of becoming a party to the whole scheme of the canal, in acceding to it, to the extent of its territorial interest, gave to the compact or agreement, such an assent as was sufficient to gratify the constitution. But it is unnecessary to dwell longer on this part of the case. In Green vs. Biddle it was decided, that no particular form, for the assent of Congress to a compact between states, was required, and it was held that the consent of Congress in terms, “to the erecting the district of Kentucky into a separate and independent state, and its reception into the Union,” upon a certain day, was a sufficient consent under the constitution, to the compact in detail between Virginia and Kentucky, for that purpose; though no part of the compact, except that which related to the erection of Kentucky into a separate state, was adverted to in the act giving the consent of Congress', and the act of Congress of 23d May, 1828, assenting to the acts of this State, for changing the route of canal above Cumberland, and substituting rail ways, &c. for a canal through the Alleghany mountains, declares “that the assent already given by the United States to the . charter of-the Chesapeake and Ohio Canal Company, shall not be impaired by any such change, &c.” which plainly - shows that Congress understood the assent before given, to extend to the whole charter a compact, and all its provisions—otherwise, the provision that a change in the route of the canal above Cumberland, should not impair that assent, would have been unnecessary, as no change of the route above Cumberland, could in any way affect that assent, unless it extended to that part of the route. Besides, it speaks of the assent before given to the charter, in terms . which embraces all its provisions.

The Potomac Company, which was also the creature of . a compact between this State and the State of Virginia, was, at the time the original act was passed for incorporating the : Canal Company, a subsisting corporation, and its charter , could not have been repealed or annulled, nor any of its-corporate rights .diminished, or infringed, without its con-.currence. Its assent therefore, to the scheme of a new corporation in its place being necessary, it was expressly made a condition precedent to the consummation of the canal charter, and to the vesting of any rights under it; to be signified by its corporate act registered among the archives of the two States, and of the United States, which was regularly done.

Upon its assent so given in consideration of a stipulated equivalent, the canal charter was to take effect, and not otherwise. It was not to be evidenced, as has been supposed, by a surrender of its charter, and transfer of its property and rights to the Canal Company; which was only authorised to be done by the 13th section, after its assent had been declared, as required by the 1st section, and after the Canal Company had been formed; and could not have been done before the company was formed, and in a condition to receive such surrender—and it was only after the assent that the company could be formed, as without it, there would have been no authority for its formation, no act of incorporation.

What the Potomac Company was required to yield, was its charter, with all its rights and property held under it— and the proposed equivalent, was the benefit to that company, of the privilege of stock in another company, possessed of all the rights and advantages proposed to be granted to the Canal Company, being paid for in the debts of the Potomac Company, and in certificates of its stock at the par or nominal value.

It was plainly a proposal made to the Potomac Company, for its acceptance, in the form of legislative enactments, to this effect; if you will consent to the provisions of this act, for incorporating the Chesapeake and Ohio Canal Company in your place, you shall, on the formation of that company, be authorised to surrender and transfer to it, your charter, with all your corporate rights and privileges ; as an equivalent for which, and in consideration of your assent, the Chesapeake and Ohio Canal Company shall be invested with all the rights and privileges that the provisions of the act impart, and subscriptions for stock in that company shall be payable in .claims against you, and in certificates of your stock at par; such a transaction between individuals, in relation to any matter about which they were competent to contract, would clearly be a contract, the obligation of which the State could pass no law to impair. And it is conceded that, that legislative proposal, agreed to by the solemn corporate act of the Potomac Company, amounted to a contract between the two States and Congress on one side, and the Potomac Company on the other, to the same extent, and of the same obligatory force and efiect, as the compact of Congress and the two States interse. Not awaiting the formation of the Canal Company, nor the surrender and transfer to it by the Potomac Company, of its charter and property; but eo instanti that the assent of the Potomac Company was given, it became a compact, and by virtue and force of that very compact, a law; the concurrence of the parties to the compact being a condition preeedent to its becoming a law, which compact and law, it was not competent to the Potomac Company afterwards to defeat or annul, nór by any act to rescind its assent.

And it is a mistake to suppose, that its becoming a compact, depended upon the coming into existence of the Canal Company, and its acceptance of the offered terms as a necessary party. The coming into -existence of the Canal Company, depended upon the prior formation of the compact, of which it was'to be the creature, and without which it could have had no existence. When the' Canal Company did come into existence, and accept the charter, in the only way it could, by the very act of coming into existence, the subscriptoins to the stock, the charter became a grant, from which, there then resulted a contract between the two States and Congress, and the Canal Company; but distinct from the compacts of the two States and Congress inter se, and between them and the Potomac Company. They were contracts, that there should be such a corporation, with all the rights and privileges provided by the charter. The contract of the two States and Congress with the Canal Company is, that they will not re-assert the rights they have granted.

Upon the faith of the canal charter, the Potomac Company surrendered and transferred its charter, and all the rights and property it enjoyed and held under it, in consideration of a stipulated equivalent; the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company. For of what value would the privilege of paying for stock of the Canal Company, in the debts, and certificates of stock of the Potomac Company be, if the stock of the Canal Company should be made worthless by an act of the legislature? and would not the faith of the States be violated by impairing that equivalent in any way, without the consent of the Potomac Company?

But if there is any ambiguity in the original act for incorporating the Canal Company, or doubt arising upon that act alone, as to the intention of the respective legislatures, the understanding of Congress, and of the two States, that it was a compact, to which they and the Potomac Company were parties, and could not therefore be in any manner altered or modified, without the consent of that company as a necessary party to such alteration; and that they acted upon that understanding, is demonstrated by the act of this State, of the December session, 1826, assented to by Virginia and by Congress, for amending the charter; which requires as a condition precedent to its becoming a law, that it shall receive the assent of Virginia, Congress, and the Potomac Company, as necessary parties thereto, in like manner as they had assented to the original act—and also by the act of the December session, 1827, for further aménding the charter, which required and received the same assent. And these acts are particularly worthy of notice, as showing the presence of a contract to which the Potomac Company was a party in interest; since, if it had no interest in the conservation of the canal charter, and of the rights and privileges it professes to confer, there was no necessity for requiring its assent to any change in the route of the canal. But the recital in the preamble, that “it is represented to this general assembly, that the Potomac Company are willing and desirous that a charter shall be granted to a new company, upon the terms and conditions hereinafter expressed, and that the charter of the present company shall cease and determine,” furnishes evidence of a conventional arrangement with that company, and would seem to be conclusive of the question of contract.

As to the sphere of the operations of the proposed corporation, looking to the various documents accompanying the answer, there would be no difficulty in ascertaining through what region it was intended the canal should pass; but it is unnecessary to resort to those documents generally, or to inquire how far recourse may be had to them for that, or any other purpose; the charter itself sufficiently and clearly designates the valley of the Potomac for the intended route of the canal.

The preamble states the object to be the construction of “a navigable canal from the tide water of the fiver Potomac, in the District of Columbia, to the mouth of Savage Creek,” &c. “to be fed through its course on the east side of the mountain, by the river Potomac and the streams which empty therein.” Here then, is a canal to begin, and end upon the river, and to be fed throughout its course, by the waters of the river, from one terminus to the other. Could there have been a clearer manifestation of the intention of the makers, that the canal should pursue the course of the river ? The right to make a canal, necessarily drawing to it, (if there was nothing more to indicate the valley as the intended route,) the right to make it where it could be supplied with the water, the vital stream by which it was intended to be fed.

The two termini being thus fixed, the laws of nature point to the course of the river, as the route of the canal.The recital too in the preamble, that the Potomac Company were willing and desirous that a charter should be granted to a new company, upon the terms and conditions thereafter expressed, shows it was intended as a substitution of the Canal Company for the Potomac Company, and to take its place in all things, and it has been seen, that the operations of the Potomac Company were confined to the valley of the Potomac.

The enacting clauses are in perfect accordance with the preamble, and provide for carrying it into effect. The 4th section authorises and empowers the corporation to cut canals, erect dams, open feeders, construct locks, and perform such other works, as it shall judge necessary or expedient for completing the canal before mentioned and described; that is, the canal described in the preamble, to be made from tide water to the mouth of Savage Creek, and fed by the Potomac.

The 15th section, after reciting that, “it is necessary for the making of the said canal, &c. that a provision should be made for condemning a quantity of land for the purpose,” authorises the acquisition by condemnation, of any land through which the said canal is intended to pass, (still referring to the canal described in the preamble,) and declares, that on the payment of the valuation of the land so condemned, the title shall vest in the corporation; and the 19th section authorises the corporation, during the pendency of any proceedings, to subject any land, to the purposes of the act, to enter upon the land and go on with the work. The 20th section declares, “that the eastern section of the canal shall begin at the District of Columbia on tide water, and terminate at or near the bank of Savage river or creek, which enters into the north branch of the Potomac, at the base of the Alleghany mountains,” and the 13th provides, for the establishing a rale of tolls, on the different parts of the canal, as they shall be finished, “until the eastern section shall be finished, up to the mouth of Savage river or creek.” The 11th directs the appropriation of the surplus tolls, “to the accommodation of the inhabitants of the shores of the river Potomac, by affording to them, in the best practicable mode, a safe and easy access to the canal, from the surface of the main river.” Now, how are the inhabitants of the shores of the river to be accommodated with a safe and easy access to the canal from the surface of the river, unless the canal is constructed upon the shore, or in the Valley of the river ? The 13th section makes it the duty of the corporation, when any part of the canal shall not be finished, “to keep the corresponding part of the river in a proper state for navigation.” What corresponding part of the river can there be, if the canal is not made along the river ? And the same section annuls the charter of the Potomac Company, upon its surrender and transfer to the Canal Company, and grants to the Canal Company all the rights and powers, that had been granted to the Potomac Company; which included the original power of the Potomac Company to make canals along the borders of the river. The 2d section of the act of December session, 1826, for amending the charter, assented to by Congress, Virginia, and the Potomac Company, authorises the termination of the eastern section of the canal, “at or near the town of Cumberland on the river Potomac,'1'’ (which is situated on the Maryland side of the river,) instead of the mouth of Savage creek and the commencement of the western section at that point, and has also this provision, “and in the event, that the western section of the Chesapeake and Ohio Canal shall leave the valley of the Potomac river, at any point below the coal banks, at or near the mouth of Savage, &c.” showing the intention of all the parties, that the route of the eastern section of the canal should be in the valley of the Potomac, and designating the town of Cumberland as a point in the valley of the Potomac, on the left or Maryland shore of the river to which it should go. The board of engineers for internal improvement, acting under the authority, of the general government, in their report, made before either Congress or the Potomac Company hád assented to the act of incorporation, explicitly state, that the eastern section of the canal must pass through the valley of the Potomac, and follow the course of the river without any deviation, and that the side on which it should go, is the only choice left, but giving a-preference to the left or Maryland side—and they base their estimate of the cost upon a construction of it on the Maryland shore—which survey and report were recognized and adopted, as designating the route of the canal, by the legislature of Maryland, in the act of the 6th March, 1826, for the promotion of internal improvement, in the proviso to the subscription to the stock of the Canal Company, that the executive should be satisfied that the residue of the sum estimated by the United States’ board of engineers to be adequate to the completion of the eastern section of the canal, had been subscribed by bona fide and competent subscribers; which act also provides for a canal to be made by the Maryland Canal Company, “from some convenient point on the Potomac river, continuing the Chesapeake and Ohio Canal to the city of Baltimore”—and the assent of Congress and of the Potomac Company having been given to the original charter, after that survey and report were made, they may be considered as having received their sanction also—and, the survey and estimate of the cost of the same route, by the civil engineers,. Geddes and Roberts, may likewise be considered as the basis of the subscription by Congress, of a million of dollars (which was made afterwards,) to the stock of the Canal Company.

With all this before us, is it not perfectly manifest, can it for a moment be doubted, that the valley of the Potomac was intended, and specifically designated for the route of the contemplated canal ? If indeed the sanction given by this State to the proceedings of the board of engineers for internal improvement, by making their survey the basis of a subscription of half a million of dollars, to the stock of the Canal Company; and the assent of Congress, and of the Potomac Company to the original act, after that survey had been made ; and the subscription by Congress of a million of dollars, consequent upon the survey, and estimate of cost of the same route by the civil engineers, Geddes and Roberts appointed for that purpose, may not be taken as an actual appropriation of the land surveyed for the route and site of the canal. If the Canal Company had come into existence immediately, and before the rail road charter was granted, it would have taken a vested right to choose a route for the site of the canal, in the valley of the Potomac, along either bank of the river, except at the upper terminus, which, whether at the mouth of Savage creek according to the original charter, or at Cumberland according to the amendatory act of the December session, 1826, is confined to the Maryland shore, both of those places being on that shore, and specifically designated for the upper termination of the eastern section of the canal, a right created by the charter, and existing independent of any survey, or act of location or of condemnation, which would be but an exertion of that right. And if the Rail Road Company had afterwards been chartered and organized, before any exercise of that vested right by the Canal Company, it could not, by any act of location or appropriation, have defeated or overreached it. The prior grant that gave, would have preserved the prior right. It would have been a corporate right, a vested franchise, to select the most suitable ground for the construction of the canal within the assigned sphere of action, which neither of the sovereign grantors alone, nor all together, could by any direct legislative act, have taken away or repealed; and much less could it be taken away, or disturbed by the act of any other corporation. This franchise, this corporate right, to select and acquire land for the authorised purposes of a corporation, is property ; it is an incorporeal hereditament, not a legal title to the land itself, not a mere capacity or faculty to acquire and hold land, such as every individual possesses; but in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation, to acquire the legal'title to land subjected by the grant to its will, and thus to convert the incorporeal into a corporeal hereditament, and after the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire, any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise. And although the Canal Company was not actually incorporated, and had not accepted the charter, before the Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation came into existence. It is not like the common case of an act of incorporation, passed by an individual State, which ordinarily, the State may repeal or modify at pleasure, at any time before it is accepted, and when no rights are acquired under it, and if it is accepted after any alterations are made, the corporation takes it subject to such modification ; because, until accepted, it is not a grant, and there is no contract between the State and the corporation, no pledge of public faith, to be violated by any alteration of the charter. And is it not on the ground of an original contract with the Canal Company, by Congress and the two States, at the date of this charter, that on this point of the case, the corporation is considered as having taken the charter, and holding it according to the then state of things with all its provisions inviolate ; for it is admitted, that the three sovereign grantors, with the consent of the Potomac Company, might have repealed, or modified the charter, (as they did in more instances than one,) or have granted the same franchises to any other company, at any time before acceptance by the Canal Company, or any act done, or right acquired under it; as until then, it had not assumed the character of a contract with that company, and therefore might have been altered or annulled by the united action of the parties, from whose concurrence it derived its existence. Though neither, acting alone and independently of the others, had the ability to do it, according to their own understanding of its charter and obligations; as is conclusively shown by the several amendatory acts of this State, of the December sessions 1826 and 1827, expressly requiring, and receiving the concurrence of all, in order to give them validity; and the former in terms styling them necessary parties. JBut it is on the ground of the compact and agreement of Congress and the two States inter se, and between them and the Potomac Company, arising from the reciprocal and, concurrent acts of the three former, and the assent of the latter; the consummation of which, was on the 16th May, 1825, the day on which the assent of the Potomac Company was given, anterior to the date of the rail road charter; and under the protection of the constitution of the United States, cannot be impaired or aifected by any thing contained in that charter.

It' is conclusively settled by the Supreme Court of the United States, in Fletcher vs. Peck, Terrett vs. Taylor, The Town of Pawlett vs. Clark, Dartmouth College vs. Woodward, and. in Green vs. Biddle, that contracts between States and individuals, and also contracts, between two or more States, are within the protection of the provision of the constitution, “ that no State shall pass any law impair- • ing the Obligation' of contracts,” and that no State can constitutionally pass any law, impairing the obligation of its own contract, whether with an individual, or with another State. The contract here was, that there should be a corporation, which, whenever it should be organized, should, by virtue of the charter, have the right to make a canal from the tide water of the river Potomac, in the District of Columbia, through the valley, and pursuing the course of the river, to the mouth of Savage creek, (a point on the left or Maryland side of the Potomac,) with permission after-wards given, to stop at the town of Cumberland, upon the river, (also a point designated on the Maryland side,) with power to acquire by purchase or condemnation, any land that should be found necessary for that purpose; which of necessity included the right to choose the route of the canal within the designated region, as the mere right to condemn land would have been of no value, and the canal could never have been made, without the additional right to select such land for condemnation, as should be thought best suited to the purpose; no specific part of the valley being appropriated. That right of choice then, in addition to the rightto condemn, which is dependent upon the exereiseof the right to choose, is a franchise, a portion of the eminent domain, which the sovereign grantors contracted should vest in the Canal Company, whenever it should be formed. It was a right residing in those sovereigns respectively, distinct from the exercise of it, which they had the power to exercise themselves, or to contract for the exercise of, by a company to come into future existence, and that, they did; not that the company should, on being incorporated, have the legal title to any lands held by individuals, but the franchise only to choose the route of the canal, and to acquire by purchase or condemnation, the legal title to the land selected for its site. It was to have also, all the rights and privileges that had been granted to the Potomac Company. That contract has not been rescinded; was in full force at the time the rail road charter was granted, and has been censtantly recognized, by all the contracting parties, and the charter treated as subsisting in all its integrity, capable only of being altered, by the consent of all the parties, even for the purpose of enlarging the authority of the company. By Maryland, in its various acts, both before and after the date of the rail road charter, relative to large subscriptions to the stock, and authorising the intersection of it by other similar works, according to its provisions; by Congress, in subscribing to its stock; and by all the parties in the amendatory acts of 1826, and 1827, the 3d section of the first of which, (passed at the same session that the rail road charter was passed,) provides, that nothing in that act shall discharge the company from a compliance with each and every of the conditions of the original act, except as therein altered. The contract is, that the canal company shall take and hold the charter, with all its provisions, all the rights and privileges it professes to impart. The right to make the canal in the valley of the Potomac, is not more distinctly stipulated, than the right to choose or select the route of the canal within that valley: and one stipulation can no more be violated, than the other. To exclude the canal from the valley of the Potomac altogether, would be no more a violation of the contract, than to obstruct or restrict the exercise of the right, to choose the most eligible ground for the construction of it. The right to choose the route, is not restricted by the contract, to either side of the river, except at the points designated for the termination of the eastern section; but is submitted to the judgment of the company, as it should have been. It is, by the contract, to have a choice between the two shores; authorise another company to occupy one of the shores, and that choice, that alternative is gone; it must take the other or none; and the contract, that it should have the right of choice, is violated. Besides, if Maryland has a right to authorise the occupation of the shore on the Maryland side of the river by another company, Virginia has the same right, and between them, though only two of the contracting parties, the power to make the canal at all, might be destroyed, and the charter virtually annulled. Let it be pronounced that the Rail Road Company has the right to take possession of the M.aryland side of the river, and what is there to prevent it from the taking like possession of the Virginia shore, wherever it may be found convenient? In which event the charter of the Canal Company would become as blank paper; for if it would have the right to go out of the valley with the canal, it would want the physical power, the proof being in the language of one of the witnesses, (an engineer,) that to make it out of the valley, would be a canal impracticability—and the further proof is, that if the claim of the Rail Road Company should be established, the canal could only be made on the Maryland shore, with such difficulty, and at such an expense, that no practical engineer would recommend it. In which case, the canal, if it went on at all, would have to cross the river, where it might be met by the same, or another company; for if to infringe the right of choice in this State, would not be to impair the obligation of the contract by the sovereign contractors inter se, neither would a similar infringement in Virginia, impair the obligation of the contract between the grantors and the Canal Company. The same law equally applies to both contracts. But if it were otherwise, the fact that both companies have chosen the same shore, and the same route, is sufficient to show that, that is the best route; and the occupation of it by the Rail Road Company, even if there should be another, would equally impair the obligation of the contract, since it would obstruct the exercise of the right of choice; and the nature or degree of the hindrance, the extent to which the obligation of a contract is impaired, be it great or small, is not material in the view of the constitution. If therefore, under the proper construction of the rail road charter, or the practical application of it, that company would be enabled so to locate and construct the road, as to interfere with, and restrict the action of the Canal Company in the choice of the route of the canal in the valley of the Potomac, or in the exercise of any of the rights and privileges granted to the Potomac Company, in so far, it is contrary to the constitution of the United States and void; and no rights to land, or of way, acquired by the Rail Road Company, can be set up against the paramount rights and privileges of the Canal Company, which stand as if the rail road charter had not been granted. The analogy insisted on in argument between this, and the case of two general or common land warrants, is not admitted; as between the holders of general warrants, there is no priority of right to locate. The warrant is in truth, nothing more than a mere authority to the surveyor or proper officer, to make the survey, and the certificate is the inception of title, to which the.patent when issued, relates. The State may issue as many general land warrants as it pleases; the issuing of one, does not preclude its issuing another or more; and he who can get his warrant first executed, though the junior warrant secures the land, notwithstanding all may be laid upon the same land, because the warrant confers no right, and it is from the act of location alone, that the right arises, and the title to the land remaining in the Statej may, until the warrant is located, be granted to any other. But not so with an act of incorporation, which when accepted, amounts to a grant, and thé right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other; it is therefore a prior right, to which all subsequent grants must yield. Here there was a consummated contract or pledge of public faith, anterior- to the rail road charter, against the effect and operation of which, it is protected by the constitution of the United States, and to the prior right of choice so secured by that contract or pledge, the rail road charter must give place. If there is any analogy, it is to a special land warrant, arising from the peculiar and special designation of the valley of the Potomac, for the route of the canal.

If there was any thing unwise, in not having limited a time for the formation of the Canal Company under the charter, that was a question for the sovereign grantors themselves, and cannot affect the rights of those claiming under it. But there is no want of wisdom perceived: it was a subject of great difficulty, and some doubt as to the practicability of the scheme; one company had already been in operation more than forty years, without being able to effect the desired object, and it could not well have been supposed, that others would embark their funds in such an enterprise, very, hastily, and without having first taken proper measures to ascertain the probable cost of accomplishing it, if upon examination it was found to be practicable—and if there had been any unreasonable delay in forming the company, (as there was not,) they who made the charter could easily have revoked it, before any rights were acquired; and if, after being formed, it had lain by, and suffered the rail road to be made, without interposing any claim to the route on which the road was constructed, such acquiescence would have amounted to a waiver of its rights, which it would not afterwards be permitted to resume, to the destruction of the road. No argument therefore can be drawn ab inconvenieñti, against the right claimed by the Canal Company.

To the objection rather suggested than urged, that the Canal Company was not a party to the contract between the two States and Congress, it is enough to say, that it is the creature of that compact; was brought into existence by it, and claims, and holds all its rights under it; as well those which had been granted to the Potomac Company, (in place of which it is substituted,) as others more extended; the whole of which depend upon the inviolate conservation of that compact or pledge of public faith. In Green vs. Biddle, 8 Wheat. 1, the suit was not between parties to the compact. The compact was between the States of Virginia and Kentucky ; and the suit was between individuals, one party claiming under a law of Kentucky, and the other setting up the compact, to show the law to be unconstitutional and void, and succeeded in doing so. But if the canal charter could be treated as the separate and independent act of Maryland alone, and which the legislature had therefore the power to repeal at any time before it was accepted, or any rights acquired under it; should the rail road charter be so construed, as to deny to the Canal Company the prior right to choose a route for the canal in the valley of the Potomac, and to give to the Rail Road Company the right asserted in the bill, to construct the road in the same valley, before the Canal Company shall have selected the route of the canal?

Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.— Plow. 205, 232. 11th Coke Rep. 73. 19th Vin. Abr. 519. 6th Bac. Abr. 384. That, therefore, which is within the letter of a statute, is sometimes not within the statute, not being Avithin the intention of the makers. “If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand;” and where two laws only so far disagree, or differ, as that by any other construction they may both stand together, the rule that Leges posteriores, priores contrarias abrogant, does not apply, and the latter is no repeal of the former. Roll. Rep. 90, 91. 2d Co. Rep. 5, 6. 11th Coke Rep. 63, 64. 19th Vin. Abr. 519, 525. It is laid down as an established rule, in 19 Vin. Abr. 525 Pl. 132, that “repeals by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable ; for these repeals carry along with them, a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another; and such repeals have ever been interpreted, so as to repeal as little of the preceding law as is possible;” and in 67th Bac. Abr. 385, 385, that “where it is manifestly the intention of the legislature, that a subsequent act of parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it taken strictly and grammatically, would repeal the former act.” These principles have been recognized and adopted by courts, from the time of Roll, Plowden, and Coke, to the present day. In Williams vs. Pritchard, 4th Term Rep. 2, where the question was, whether a house built on land recovered from the river Thames, which by the Statute 7th, Geo. 3, was exempted “from all taxes and assessments whatever,” was liable to be assessed to the general land tax, imposed by the 27 Geo. 3. Lord Kenyon in delivering the opinion of the court of King’s Bench, said it could not be contended, that a subsequent act of parliament would not control the provisions of a prior statute, if it were intended to have that operation. But decided in that case, that though the words of the general land tax act of the 27th Geo. 3, were sufficiently large to subject the land to the payment of the tax in question, yet that the statute of 7th Geo. 3, exempting it from taxes, was not thereby repealed, on the ground, that it was not considered to have been the intention of the legislature to repeal it.

In Preston vs. Browden, 1 Wheat. 115. The Supreme Court of the United States, in construing an act of assembly of North Carolina, had recourse to the history and situation of the State, and treaties made by that State with the Indians, in order to ascertain the intention of the legislature, and thereby to arrive at the meaning of the act, and decided, that it did not embrace the land in question, though the words of it were sufficiently broad and extensive; on the ground, that it did not appear to have been the intention of the legislature; and in McCartee vs. the Orphan Asylum Society, 9th Cowen, 437, it was decided, that although the word purchase comprehends the acquisition of an estate, as well by devise, as by the party's own act, yet that the act of the legislature of New York, incorporating the Orphans' Asylum Society, which enacts that, that institution, “shall be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of the said corporation,” did not so far operate as a repeal of the statute of wills, of that State, which prohibits a devise of real estate to bodies politic and corporate. Thus limiting and restricting by construction, the acknowledged legal import of the term purchase, and confining it to such other modes of acquiring real estates, as do not include a devise, on the ground, that it was only the intention of the legislature, to grant to that corporation the right to purchase, subject to other existing statutes, and not to confer a right to purchase without restraint, and therefore, that the term purchase, ought not to be construed in its most comprehensive sense, since by doing so, it would have the effect to repeal the express words of a prior statute; but in a more restricted sense, so as to leave the former act unimpaired, and that both might stand together. Keeping in view the principles before stated, and upon which the decisions referred to were made, with many others quite as strong that might be mentioned, let us for a moment examine, whether it was the intention of the legislature of Maryland, when granting the rail road charter, in any manner to limit or restrict the provisions of the act to incorporate the Canal Company, or to alter or abridge any of the rights or powers originally intended to be given by that act, or to repeal any part of it; and if not, whether the rail road charter must be so construed as to operate that effect. It has been seen, that the valley of the Potomac is specially and clearly designated by the charter, for the route of the canal from one terminus to the other, the upper terminus being required to be at a point on the Maryland shore of the river; and that it was considered as a work of great national, as well as local importance. And it is undeniable, that independent of any interference by the rail road charter, the Canal Company would be entitled to select a route for the canal, in that designated region. On the other hand, the rail road charter is general and affirmative in its terms, with no route prescribed, no particular region or district of country designated for the location of the road, nor any thing relative in its character, requiring it to be constructed, (as in the case of the canal,) in the valley of the Potomac. A general power only being given to the company to enter upon, use, and excavate, and to acquire by purchase or condemnation, any land which may be wanted for the site and construction of the road. There is no reference to the canal charter, (which is not mentioned) nor to any of its provisions, or the particular region within which the canal is required to pass, and must he made, if at all; but upon the face of it, it is perfectly compatible with the canal charter, and it is only by the practical application of it, under the construction contended for, that any interference is produced.

On the 16lh of May, 1825, the day on which the Potomac Company gave its assent to it, the act to incorporate the Canal Company became a public law of the State, though not at that time operating as a grant, not being then accepted. The act of the 6th March, 1826, ch. 180, for the promotion of internal improvement, in which a company called The Maryland Canal Company is incorporated, to make a canal “from some convenient point on the Potomac river, intersecting or continuing the Chesapeake and Ohio Canal to the city of Baltimore,” gives authority to the treasurer, to subscribe for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company held by the State, and of the debt due to the State by that company, and of half a million of dollars besides.

Thus recognizing the act to incorporate that company as a subsisting law in all its integrity, vesting her capital to a large amount in its stock, and treating it as part of a more extended scheme of internal improvement—and by the provision for a canal to be made by the Maryland Canal Company, “from some convenient point on the Potomac river, intersecting, or continuing the Chesapeake and Ohio Canal to the city of Baltimore,” plainly indicating the understanding and intention, that the Chesapeake and Ohio Canal should be made on the Maryland side of the river : otherwise it could not be intersected or continued to Baltimore, by the Maryland canal. The act of the 8th of March, 1826, ch. 200, giving permission to the State of Pennsylvania, to connect a canal or rail way with the Chesapeake and Ohio Canal, again recognizes it, as a subsisting law. The act of the 5th of February, 1827, ch. 78, to amend the act, to incorporate the Canal Company, requiring by the 4th section, in order to give it validity, that it should receive the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, styling them in the first section necessary parties: and declaring in the 3d section, that nothing in that act, shall be held to discharge the company from a compliance with each and every of the conditions of the original act, except so far as they are expressly altered by the provisions of that act, which only relates to a part of the canal above Cumberland, not only treats it as a law in full force, but as a favorite measure of the State, and exacts from the company whenever it should come into existence, a rigid compliance with all its provisions; and on the 28th of February, 1827, the rail road charter was passed. Now is it to be believed, that on the 28th of February, 1827, the legislature intended by the rail road charter, to repeal any part of the canal law, which had been up to that time, so recognized and fostered by the State, and to the stock of which, considerably more than half a million of the State’s capital funds had been authorised to be subscribed; or in any manner to abrogate, alter, limit, or restrict, or to authorise any interference with any of its provisions ? On the contrary, is it not manifest, that the legislature had no such intention ? Can it be, not only that the legislature, but the same body of individuals, who, on the 5th of February, 1827, had, in the act to amend the canal law, declared that it could not be done without the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, as necessary parties, even for the purpose of enlarging the powers of the contemplated company, and had also required a strict and full compliance with all the provisions of the law except as therein altered, intended on the 28th of the same month, only twenty-three days afterwards, and at the same session, by its own separate and independent act, proprio jure, to repeal any part of that law, or to limit or restrict any of its provisions, or authorise any obstruction to the exercise of any of the rights or powers originally intended to be conferred by it, whereby the canal might either be arrested altogether in its progress, or driven from the State: which, so far as Maryland is concerned, would amount to a virtual repeal of the law; and that too, in favor of an institution, the relative value of which, was not then well understood ? If the question could now be put to the members of the legislature who passed the rail road charter, whether they had, or not, any such intention, it cannot be doubted what the answer would be ; and that, is not an unapt test of the intention. It was certainly not the interest of the State, to do any thing to obstruct the canal in its progress, or to force it from the State; nor does it appear that any interference with it, was in the contemplation at the time, of the projectors of the rail road. But there are other subsequent legislative acts upon the subject, showing the understanding and intention of the legislature.

On the 10th March, 1827, at the same session, and only ten days after the rail road charter was passed, the canal law, with all its provisions, was again recognized by the legislature, in the supplement to the act for the promotion of internal improvement, chap. 211, modifying, by the first section of it, the condition on which half a million of dollars had before been authorised to be subscribed to its stock, and continuing the authority to subscribe that amount; which would hardly have been done, if the legislature had understood that only ten days before, they had by the rail road charter, authorised such an interference with the location of the canal, as might have the effect to force it from the State of Maryland, or destroy it altogether. The act of the 2d January, 1828, further to amend the canal law, requiring the assent of Congress, of the legislature of Virginia, &e. was not only a further recognition and affirmance of all its provisions, except as thereby intended to be altered; but by requiring the concurrence of Virginia, Congress, &c. whenever it was intended directly to alter the law in any particular, furnishes strong evidence, that they did not intend when passing the rail road charter, indirectly to alter or repeal any part of the canal law. On the 3d March, 1828, by a supplement to the act for the promotion of internal improvement, ch. 104, authority was given to the treasurer, to subscribe for five thousand shares of stock in the Baltimore and Ohio Rail Road Company; and on the same day, and immediately following, authority was given to the treasurer, by a further supplement to the same act, chap. 105, to subscribe, for the same number of shares of the stock of the Canal Company, reciting the importance it was of to the State, effectually to secure the completion of the work, if ever commenced. What work? Surely the canal, as provided for by the terms of the law. Thus, two supplements passed on the same day, treating the two contemplated works, as branches of the same general system for the promotion of internal imnprovement, and giving a preference to neither; but extending the same aid to each, by subscribing equally, to the stock of both. Those various, precedent, concomitant, and subsequent acts, demonstrate the intention of the legislature to have been, not that the rail road charter should repeal the canal law, or any part of it, or that the rail road should displace the canal; but that the law to incorporate the Canal Company, and all its provisions should remain in full force. With this manifest intention of the legislature, in the absence of any express, or necessarily implied repeal of the express provisions of a prior law, and with no plain and unavoidable repugnancy between the two laws, the rail road charter ought to be so construed if it can be done, as that both may stand, and the intention of the legislature be gratified—and not so, as by the practical application of it, to defeat the intention of the legislature, if by a reasonable construction it can be avoided. A construction of the rail road charter, that would have the effect to obstruct the route of the canal along the valley of the Potomac, on the Maryland side of the river, would be a virtual repeal of the Maryland law; since if it cannot be enforced here, it can be enforced nowhere—which was clearly not intended by the legislature, but would be the effect of con-

struing the words cmy land, used in the rail road charter, according to their most comprehensive and extended sense, as contended for on the part of the Rail Road Company; as any land, would embrace any land in the State, whether in the valley of the Potomac or elsewhere, and under any circumstances. But if construed in a more limited sense, and so as to entitle the Rail Road, Company to occupy with the road, any land not required for the practical operation of the prior law, both may stand according to the intention of the legislature, made evident by the general and uninterrupted course of legislation, in relation to them, at every session from the date of the canal charter, to the time of the institution of this suit; and especially, in their avoiding to make any amendment of the canal charter, without the assent of Congress, the legislature of Virginia, &c. (and much less therefore, would they have intentionally repealed it,) and in authorising subscriptions for an equal amount of stock in both, and constituting them independent branches of a great system of internal improvement. And that construction should be given to the rail road charter, the construction of the road in the valley of the Potomac, not appearing to be necessary, to the full execution of the charter; and the road not being required by the charter to be made in that region—whereas the canal is not only required to be made in the valley of the Potomac, but according to the proof in the cause, can be made nowhere else, and if not made on the Maryland side of the valley, cannot be made at all under the Maryland law, viewed as a mere separate and independent charter of this State, without reference to the law of Virginia: which as such, could not authorise the construction of it, any where but in Maryland. And as the validity of the Virginia law, is made by its terms to depend upon the concurrence of Maryland, if the canal charter, as a law of Maryland, was repealed by the rail road charter, and the assent of the State to the Virginia law thus withdrawn, the whole charter thereby became inoperative and void. But by construing the words of the rail road charter, in the sense suggested, full effect wilj be given to both charters, and the faith of the State preserved unimpaired, which it was never the intention of the legislature to violate ; and if no other construction could be put upon the words of the rail- road charter, than that contended for on the part of that company, the use of those terms, would clearly have been a mistake on the part of the legislature.

It would be doing injustice to the legislature, to suppose that they intended to start those two great companies on a face, for the, ground best suited to their respective purposes, with a stake of half a million of dollars on each, by which the State might lose a large amount; in the event of one, being obstructed in its progress by the other, with no prospect of gain, instead of sending them forth, each to pursue its own independent course, without any interference or conflict with the other. It has been urged in argument, that the proviso in the supplement to the act for the promotion of internal improvement, to the subscription authorised to be made to the stock of the Rail Road Company, that the company “shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it shall go into Frederick, Washington, and Alleghany counties,” shows the intention of the legislature to to have been, to authorise the Rail Road Company to make the road in the valley of the Potomac, notwithstanding the provisions of the canal charter, if they could first appropriate ground in that region for the route of the road. But it will be remarked, that, that proviso is no part of the charter of the Rail Road Company, and was only a condition, upon which the stock of that company was authorised to be subscribed for, on behalf of the State, and whatever might have been the object of the legislature, in annexing that condition, it cannot have the effect to show, what was the original intention of the legislature at the time of passing the rail road charter, and to overthrow all the legislative evidence, that is exhibited, of a different intention. Nor ought a mere condition, on which the legislature thought fit to subscribe for stock of the Rail Road Company, with nothing more, to have the effect to repeal the canal charter. And the requiring as a part of the condition, that the road should “go into Frederick, Washington, and Alleghany counties,” was not to require that it should pursue the course of the river: since it might go into all those counties, without pursuing the course of the river, even after going to it; and with mere advantage to those counties, (which it would seem to have been the intention of the legislature to benefit by the condition,) as a road passing through their interior, would necessarily diffuse more general benefit and convenience, than one, merely running along their borders. It is possible, that the legislature did entertain doubts whether the canal would ever be commenced; no company having then been formed; and that under the influence of such doubts, they annexed to the subscription to the stock of the Rail Road Company, the condition that the road should go to the river; not for the benefit of that company, but in order to diffuse as widely as might be, the advantages to the community of that institution. But with no intention to prevent either the commencement, or completion of the canal, by requiring the road to be constructed along the borders of the river, to the exclusion of the canal. And that is not the meaning of the condition, as is sufficiently shown, by the recital in the immediately following supplement to the same act, of the importance to the State, of “effectually securing the completion of the canal, if ever commencedwhich conclusively evinces the determination of the legislature, that the canal, if ever commenced, should be completed according to the provisions of the charter, without hinderanee by any other institution. Moreover, exclusive of subscriptions, payable in the stock and debts of the Potomac Company, there had been on the 14th November, 1827, more than a million and a half of dollars subscribed to the stock of the Canal Company, by individuals and the district corporations, and the amount required by the charter, paid on each share at the time of subscription, whereby extensive interests and incipient titles had been acquired, and the public faith pledged, that each subscriber should hold and enjoy his stock upon the terms and conditions expressed in the charter, and on which he had subscribed and paid his money,—after which, it was too late, consistently with good faith, to alter the terms and conditions of subscription; or in any manner to lessen the value of the stock, or vary the condition or interest of the subscribers, without their knowledge or consent. Under such circumstances, with the subscription books still open, and an invitation held out to all the world, under the authority of the State, and by the charter, to come in and subscribe for stock according to its provisions as they then stood; and there being also, then pending in Congress, a bill for a subscription to the amount of a million of dollars to the canal stock, it is not, and cannot be believed, that the legislature intended on the 3d March, 1828, by the proviso annexed to the subscription to the rail road stock, to authorise and require that company, so to locate, and construct the road to the Potomac river, and along the valley, as either to arrest altogether the progress of the canal, or force it out of this State into Virginia; or in any way to limit and restrict the provisions of the canal charter ; or do more, than to provide as far as it could be done, for the event of the failure of the canal scheme, which might have been apprehended ; but which, the same legislature, immediately afterwards on the same day, and by a further supplement to the same act, which together, are to be taken and construed as one law, manifested a determination to prevent, by authorising a subscription of half a million of dollars to the canal stock, on such conditions, (in their own language,) “as would effectually secure the completion of the work, if ever commenced,” which is wholly at war with any intention to repeal the canal charter, or to abrogate or restrict any of its provisions; or to require or authorise the Rail Road Company to obstruct or displace the canal, by being the first to acquire title, by purchase or condemnation, &c. to any land in the valley of the Potomac, deemed necessary for its route and construction.

The acts of the legislature of Maryland, passed on the 22d Feb. 1831, and of Congress, on the 2d March of the same year, have been pressed in the argument on the part of the Rail Road Company, but do not seem to have any bearing upon the question involved. The former being “an act to promote internal improvement, by the construction of a rail road from Baltimore to the city of Washington,” and only authorising the construction by the Baltimore and Ohio Rail Road Company, of a rail road from some convenient point on that part of the Baltimore and Ohio Rail Road, which had then been constructed, and was in use, not exceeding eight miles from the city of Baltimore, to the line of the State, adjoining the District of Columbia, in a direction towards the city of Washington. With no relation whatever, to a location of the Baltimore and Ohio Rail Road in the valley of the Potomac, which is in a different direction, and far beyond the point on that road, from which the proposed road from Baltimore to the city of Washington, is authorised to be constructed, and not in the remotest manner tending to sanction such a location of the Baltimore and Ohio Rail Road, or to show the original intention of the legislature to have been, to repeal any part of the canal charter, or to authorise the Rail Road Company so to locate that road, as to obstruct, or in any manner interfere with the passage of the canal, along the valley of the Potomac, upon the Maryland side of the river. The making the contemplated road from Baltimore to the city of Washington, not being dependent upon, and having nothing to do with the question, whether the Rail Road Company has or not, a right to construct the Baltimore and Ohio Rail Road in the valley of the Potomac, but may be made whether that right exists or not, and without any reference to it; and even, although the rail road never should be completed to the valley of the Potomac. Just as well may any law, which may hereafter be passed, for making branches from any part of the rail road that is completed, be said to show the intention of the legislature to have been, to confer upon the Rail Road Company by its charter, the right to exclude the canal from the valley of the Potomac, by first occupying the ground, as can the act of this State, of the 22d February, 1831. And the act of Congress, of the 2d March, 1831, does no more than merely to authorise an extension “ into and within ” the District of Columbia, of the road proposed to be made by that act; without any reference whatever, to the chartered rights of either the Rail Road or Canal Company, in relation to the occupation of the valley of the Potomac, or to any sanction, express or implied, of the claim set up by the Rail Road Company.

There were several minor questions discussed at the bar, which in the view that has been taken of the subject, it is not deemed necessary to examine. It may however, here be proper to remark, that had our minds been in a state of equipoise, the decree of the Chancellor, whose argument we regret not having seen, would have been affirmed; there being no appeal from a decree of reversal. But not entertaining that degree of doubt, which would alone justify a decree of affirmance, we should be unworthy of the trust reposed in us, if we were to shrink from the faithful discharge of our duty, only to commit the decision of the the cause to another tribunal. These observations are elicited, by our having been reminded in the course of the argument, that in the event of a decision against the claim of the Rail Road Company, there could be no appeal; which we regret, but cannot honestly avoid the consequence.

The decree of the Chancellor is reversed, and the bill dismissed with costs.

Earle, and Stephen, J. concurred.

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Dissenting Opinion

Archer, J.,

dissented, and delivered the following opinion:

A collision having arisen between the Rail Road and Canal Companies, in the designation of a route for their improvements, a removal of the difficulty is sought in the judgment of this court, in the exercise of its appellate, equitable jurisdiction.

The solution of these difficulties will be found in the determination of the legal priority, which one company may-have over the other, and in the examination of their respective equities.

The canal claims priority over its rival company upon the ground, first, of her derivative rights arising by assignment from the Potomac Company, and secondly, from her original rights springing from the law which created her. These pretensions shall be severally examined. In their investigation, the comparative rights of the Rail Road Company will be necessarily reviewed.

1st. The derivative rights of the Canal Company will bo first examined.

Without any particular reference to the laws in relation to the canal, it may be generally stated, that these gave to the Canal Company, the right of receiving from the Potomac Company, the surrender of its charter, and an assignment of all its rights and privileges, and the right to hold, use, possess, and occupy the same, to the same extent as the Potomac Company at the time of the surrender held them. The Potomac Company did accordingly, on the 15th August, 1828, execute its deed of surrender of the charter and rights above referred to.

This charter of the Potomac Company was granted in the year 1784, long anterior to the Rail Road Company, and if it was possessed of rights and privileges, which were interfered with by the rail road charter, its assignee, the Canal Company, must be protected in their enjoyment, as it would not be competent for the legislature, to disturb by her subsequent action, rights vested in pursuance of her anterior grant.

An attentive examination of the charter of the Potomac Company then becomes necessary, for the purpose of ascertaining her powers, rights and privileges. If this company had originally no power of making a continuous canal, or in consequence of lapse of time, had lost the power of acquiring land on the river, to make her improvements, no rights which she possessed, or property which she enjoyed, are at all interfered with; the Rail Road Company not seeking to disturb its works heretofore erected, or to interfere with the navigation of the river, by its locations, but desiring only to pursue its unoccupied margin.

If it were legitimate to look beyond the laws creating this corporation, to discover the designs of the legislative body, in its creation, they would be observed in a light too glaring to escape the dimmest vision. Previous to December, 22, 1784, commissioners had been appointed by the States of Maryland and Virginia, to confer together on the subject of opening and improving the navigation of the Potomac river, and, on that, day, they proceeded to consider the subject referred to them, and came to a variety of resolutions recommendatory to their respective principals. Some of these will be adverted to.

“That it is the opinion of this conference, that the removing the obstructions in the river Potomac, and the making the same capable of navigation, from tide water, as far up the north branch as practicable, will increase the commerce of Virginia and Maryland.”

“That it is the opinion of the conference, that the proposal to establish a company for opening the river Potomac, merits the approbation of the two States.”

“That it is a general opinion that the navigation on the Potomac may be extended to the mouth of Stony Run.”

“That the States appoint skilful persons to view, and accurately examine and survey Potomac, from Fort Cumberland to the mouth of Stony river, and the river Cheat, from about the Dunker bottom to the present navigable part thereof, and if they judge the navigation can be extended lo a convenient distance above Fort Cumberland, that they may from thence survey, lay off, and mark a road to Cheat river, or continue the same to the navigation, as they may think will most effectually establish the communication, between the said eastern and western waters.”

The object and intent of this conference was manifestly not to canal the river, but to render its bed navigable, for it speaks constantly of making the river navigable—how ? by canalling ? no, but by removing obstructions in it. The great object was, to produce a communication with the western country, not by a canal, but by the conjoint means of the river itself j whose navigation was to be made passable by clearing its obstructions, and by roads across the ridges of the Alleghanies, to certain designated navigable waters of the west. Out of the results of this joint commission, grew the charters granted by the respective States to the Potomac Company, passed immediately after the labors of the commission had closed, and it is remarkable how closely the States pursued the recommendation of their commissioners. The great agent which each created, for effecting this object, so strongly recommended, of improving the navigation of the river, was the Potomac Company.

But if we cannot look at the anterior proceedings of the States, to fix their designs in the creation of the charter of the Potomac Company, even where the charter is not inconsistent with the intent thus indicated, and it may be well assumed, that the charter is the only legitimate index of the legislative intent—then, it is just as clear, that the design of the charter, is identical with the designs as expressed previously by the commissioners, with this exception, that the States foresaw, that there existed impracticabilities in the removal of obstructions, in particular places or passes of the river, arising from falls, which might render occasional canalling necessary.

Let us examine, with some minuteness, the provisions of this grant, that we may be enabled, the more clearly to discern its character.

Both the charters of Maryland and Virginia, as regards this question are identical.

The title explains the whole scope and object of the law. What is it ? “An act for opening and extending the navigation of the Potomac river.”

Now let us refer to the recital—“Whereas the extension of the navigation of Potomac river from tide water to the highest point practicable on the north branch, will be of great public utility, and many persons are willing to subscribe large sums of money to effect so laudable and beneficial a work; and it is just and proper that they, their heirs and assigns, should be empowered to receive reasonable tolls, forever, in satisfaction for the money advanced by them in carrying the work into execution, and the risk they run.”

Thus we perceive, that the preamble, like the title, looks constantly to the river, whose navigation is to be improved— and the opening of its navigation, as the work which is to be accomplished. But the preamble proceeds: “And whereas it may be necessary to cut canals and erect locks” (not a continuous canal, but canals) and other works on both sides of the river, and the States, impressed with the importance of the object, are desirous of encouraging so useful an undertaking: Therefore, &c.” Now, what undertaking is here referred to? Is it not that which bad been previously referred to—the opening of the navigation of the riverl and can the word canals be tortured to mean one continual canal ? On the contrary, does it not obviously pre-suppose that the river, in some places, may be innavigable even by art, and that hence, in such places there may exist a necessity, in order to preserve a continuity of navigation, that such barriers should be avoided by canals, otherwise the great work of opening and improving the navigation of the river might have been defeated.

The 9th section more clearly specifies this power of cutting canals, and in express terms defines and declares the object of such a grant. The following is the language, “That for and in consideration of the expenses the proprietors will be at, not only, in cutting the said canals for opening the different falls of the said river, and in improving and extending the navigation thereof, the canals and profits are vested in the proprietors in fee, it is deemed real estate exempt from taxation, and they declared to be entitled to tolls.” Thus the canals authorised to be cut, are declared “to be canals round the falls of the river,” and the legislature here distinctly recognise two objects within the grant. 1. The cutting of canals round the falls; and 2dly, the improving and extending the navigation of the river itself. For this section, as we have seen, says the company will be at expense in cutting canals round the falls, and in improving and extending the navigation of that river : thus all idea of one continuous canal is not only impliedly repudiated, but is without the express terms of the grant—for a river navigation is looked to where not impeded by falls, and where falls interfere, canals.

The 10th, 17th, and 19th sections, are in furtherance of the same construction, and will justify no other.

The 10th section enacts, “that the said river, and the works to be erected thereon, in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation of all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act.” Now, if it was designed, that the Potomac Company should make one continuous canal, and abandon the improvement of the bed of the river, it is inconceivable that the company should have been permitted to retain the right of collecting tolls, for the transportation of produce down the channel of the river. Because, instead of improving its navigation, so as justly to render those who passed down it liable to a toll, it had abandoned the river, by making a continuous canal, and had, by abstracting thereby so large a quantity of water from its current, in all probability lessened the value of the stream itself to the public, as a navigable river. Instead of a continuous canal having been in contemplation, this section clearly shoves, that the improvement of the river and canals as before, were contemplated, because tolls are imposed on produce passing down the river and the works thereon, and the river and the works thereon are declared to be a public highway.

The 17th section is also perfectly explicit, where it declares, that ’’•the Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water.” Now a continuous canal would have a tendency, by lessening the quantity of water in the river, to defeat this express requisition—that of making the river navigable in dry seasons. And the 19th, pursues the same object, and is illustrative of the same design. “Be it enacted, that all the commodities which may be transported on the canals and river, may be landed and sold, subject only to such impositions as the like goods are liable to, in the state where landed.” Here the transportation of goods down the river is spoken of, and also through the canals. What canals? Why the canals spoken of in the 9th section; 11 the canals round the falls. ”

Thus the title, preamble, the whole scope and object of the grant, all the sections adverted to, refer distinctly and explicitly to the improvement of the bed of the river, unless where that is rendered impracticable by falls, and then, they were to canal. Thus their powers are clearly limited and defined, and they would have possessed no power to make a continuous canal, and consequently were destitute of all power to condemn land for any such purpose.

All the sections of the charter having any reference to this branch of the subject, have been adverted to, except the fourth section, and having thus ascertained the general scope and object of the legislature, and what it is, that this company was incorporated for, I shall advert to that section. “The company shall have power and authority to agree with any person, or persons, to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same from place to place, and from time to time, and upon such terms, and in such manner as they shall think fit.” It is upon this section, that the Canal Company insists, that powers were imparted to the Potomac Company, to make a continuous canal. Now, whatever power this provision might, if it stood alone, be supposed to grant, it must be admitted, that its phraseology is capable of being controlled by the scope and object of the law, to be duduced from its provisions generally. Thus, when it is said, they may perform these wrorks from time to lime, this would seem to give them an unlimited range. But the words from time to time must be controlled, and governed, by the limitation assigned in their charter, for the completion of their work. Again, when it is said, these canals, locks, and other works, are to be done in such manmer as the company shall think jit; this generality of expression must be restricted to canals and locks, of such size and dimensions, as might be prescribed in other sections of the law; and so when the general power is given to make such canals as they may deem necessary, it means such canals as are spoken of in the 9th section, “canals for opening the falls of the river.” It is not my intention to assert, that they were confined in their power to make canals, to the Great and Little Falls, but had a general power to make a canal around any falls of the river, which impeded its navigation. But in the exercise of their judgment, of what canals were necessary, they were restricted to the making of them only where falls existed; and it would have been a perversion and evasion of the law, to have made either a continuous canal, or a canal whore no falls existed, or no impediment existed in the navigation of the river by its natural course. It is no answer to this, to say, that a continuous canal would better have subserved the public interests, and better have gratified the wishes of the legislature, by giving certainty and safety to the transportation of produce from the north branch to tide water; for the legislature have not chosen to say so, they desire alternate river and canal navigation; they desire the river to be opened and improved, and the difficulties interposed by falls, surmounted by canals. And having intelligibly impressed these dispositions on their grant, a court of justice should give it efficacy as they find it; and has no power to do any thing else. They must expound the grant, and not frame one, because they might perchance think, that a grant thus judicially framed, would better subserve the public welfare.

The same construction which is above given to the Potomac charter, has from its very organization, been given to it by the parties interested, by the States of Virginia, Maryland, and the Potomac Company herself. At November session, 1797, that company stated, that they had removed most of the obstructions in the Potomac river, from Savage river to tide water, that they had erected locks at the Little Falls, and made a canal at the Great Falls, but had not completed the locks thereat; whereupon the legislature authorised that company to receive tolls, conceiving that their great scheme of improvement, as contemplated by the charter, had ¡been so far advanced, as to justify the grant of libérty to take tolls. And the legislatures of the two States, go on from time to time, Maryland, for the period of twenty-nine years, in extending time to the Potomac ■Company to complete the navigation of the Potomac river; thereby recognising the mode of improvement pursued, as the proper mode, and the construction put upon the law as the true one; and Virginia has even gone farther, and has extended the time for thirty-six years, from the passage of the law. And as if to give greater efficacy to what has been done/ and to^confirm, if it wanted confirmation, that ■thejconstruction was strictly according to the1 charter, Maryland, by her law of 1802, c/t. 84, declared <{ that the object contemplated by the act of Assembly, for establishing a company for opening and extending the navigation of the river Potomac, had been accomplished.” Again, in the act of 1786, extending the time to the company, for completing the navigation, the legislature declare that their reason for the enactment of the law was, “ that the two last summers had been so unfavorable to the work of making and improving the navigation above the Great Falls, in the Potomac river.” We may easily imagine, how much the occurrence of freshets in the river, would interfere with the works of a company which had to make the river navigable in dry seasons, by clearing out obstructions; but if their business and duty had been to make a continuous canal, there must have been the occurrence of two very unusual and extraordinary summers, to have been pronounced by legislature so very unfavorable to the digging and construction of a canal. The act of 1790, ch. 35, which authorised the company to apply the tolls, received for the improvement of the branches of the river above Seneca, contains this provision, “Provided that no such application shall be made until the main river, from tide water, is cleared to Fort Cumberland.” Here the main river is spoken of. It is to be made navigable not by a continuous canal, but by being itself cleared. And by an act passed in the year 1814, being a supplement to the charter, power was given to the Potomac Company to acquire lands, contiguous to the canals and locks on the river, by purchase, compromise, and exchange, but with the proviso, uthat the said company shall not, at any time, hold more than one thousand acres of land in this Slate.” Notwithstanding the general power to purchase land contiguous to their canals, all the land they are to hold, both that which is occupied by their canals, and such as they should purchase contiguous to them, was not to exceed one thousand acres. With this express limitation, wtio will or can say, that it ever was intended to grant any power, to make a continuous canal from tide water to the highest practicable point on the north branch, a distance of from one hundred and twenty to one hundred and fifty miles, and considerably more, following the sinuosities of the river. A moment’s calculation will show, that instead of being able to purchase any land contiguous to their canals and locks, one thousand acres, the extent of their power to hold, would have been exhausted, before they could have reached half the distance from tide water westwardly, with a continuous canal.

Thus, whether we look to the charter itself, or to the practice, acts, and understandings of the parties under it, its exposition is freed from all doubt; and clearly, there was at no time power to make a continuous canal, and it was never so thought, or understood, by the parties or either of them.

The right of the Potomac Corhpany to condemn lands, has long since ceased, not by any forfeiture of its charter, but by limitation of time. In speaking of this limitation, it is only meant to refer to the right of condemnation, along the disputed and contested territory. It may still possess the right to condemn land, from the town of Cumberland to the highest place to which navigation is practicable, on the north branch of the river, unless the company accepted some of the amendments of the charter; for between those two designated points, there seems to have been no limitation of time in the original law, with regard to its powers in this respect. But from the town of Cumberland to tide water, Maryland had bound her to complete her works by the 1st January, 1813, from Great Falls to the town of Cumberland, under the following penalty, “ that it should not be entitled to any benefit, privilege, or advantage under her charter, and from the Great Falls to tide water, under the penalty of a forfeiture of all her rights to tolls, and all her preferences to a navigation of the river.” And it was under the same obligations, and liable to the same penalties under the Virginia .charter, except that, by that, and its supplements, it had the time extended until the 1st January, 1820. Now it so happens, that the very portion of the river, and its contiguous country, now in litigation, from the town of Cumberland to the Great Falls, is the subject of this limitation. Whether the right to condemnation still continued in the company, higher up than Fort Cumberland, we are consequently not concerned to inquire.

The continuation of the company, notwithstanding the limitation of time, for the exercise of its ordinary franchises, even if it had not completed its object, there never having been any process in a legal tribunal for vacating its charter, is not the question presented for consideration ; but the question is this, could that company, after the time limited, exercise its extraordinary power of condemning land, whether its works were or not completed.

The power of condemning land, and appropriating it for the use of the company, was a high attribute of sovereignty, was in derogation of the rights of tho citizens, and ought to be construed rigidly, aud made subject, in the strictest degree, to all the limitations imposed upon it by the sovereign power; and denying to it this power, when the question comes collaterally, or incidentally into litigation, in a court of justice, in no manner affects the common and ordinary franchises of the corporation, but leaves them all subsisting, to be exercised in their accustomed mode, until there shall be a regular judicial forfeiture, while at the. same time, every citizen has it in his power to guard himself against the illegal seizure and appropriation of his land, and is not called upon to solicit the intervention of the sovereign power to establish the fact of a forfeiture of franchises, before he could hope for a vindication of his rights.

We accordingly see the parties to this grant, constantly acting upon this principle. The Potomac Company never seeking the passage of laws denying the right to have their charter forfeited, but asking time to extend their works in the mode pointed out by the laws, and neither the company, nor the legislature; ever looking back to periods of time which had elapsed, not covered by any of the laws extending the time, hut always forward to the exercise of those powers conferred by their charter, which would be necessary to enable them to complete the work they had undertaken.

If the company failed to complete her works from the Great Falls to Cumberland, in the language of the 17th section, she was no longer entitled to her privileges, one of which was, the purchase and condemnation of land within those limits; and a title, either by the one mode or the other, would have been just as unavailable, as it would have been, had the charter declared, that the title acquired at such a time, and under such circumstances, should be void, and the company might at all times have been restrained by a court of equitable jurisdiction, from the acquisition of title by such means, after the time limited by the law, had elapsed.

And if she had on the contrary, completed all the objects in the contemplation of the legislature by that charter, within those designated points, it cannot be contested, with success, that they nevertheless still retained the power of condemning lands.

That these works had been completed in view of all parties, is not to be disputed against a clear, legislative, declaration to that effect. The original charter only authorised the exaction of tolls, upon their completing the extension of the navigation from Cumberland to the Great Falls, and from those falls to tide water. In 1802, ch. 84, the legislature of Maryland passed a law with the following preamble:—“whereas the object contemplated by the act of assembly, for establishing a company for opening and extending the navigation of the river Potomac, has been accomplished,”—and then enacted, that she should take the tolls as originally prescribed, thereby recognizing in the fullest and clearest manner, the entire completion of the work, at least within the designated points. To fulfil its engagements then to the public, the Potomac Company had nothing further to do, for she had the declaration of the highest functionaries of the State, that she had performed them. The act of 1809, further extending the time, furnishes no argument against this view, because, although the company had completed her work, she may have desired the re-establishment of her former powers, which are by this law admitted to have expired, for the purpose of rendering more perfect her works, for her own profit and advantage.

If then, she had completed all the works assigned her by the charter to perform, for what purpose should the law repose in her, for an indefinite period, the power to condemn lands, or why should she retain those powers for a moment beyond the period assigned ?

For what purpose was the power to condemn, granted? The 11th section informs us—“And whereas it is necessary for the making the said canals, locks, and other works, that a provision should be made for condemning a quantity of land for the purpose”—therefore the power is given.

Now, if all the canals, locks, and other works, are made and completed, and we have the legislative declaration that this was done, where the necessity for the existence of the power, and did it not, by the terms of the grant expire with the accomplishment of that, which it was intended to effect? Argument cannot make this proposition plainer, or carry greater conviction to the mind of its truth, than its mere statement.

But it is said, the company had a right to adopt one mode of improvement, then abandon it, and commence, and prosecute another. That she might make canals where none were made before-—let this be admitted. Still she must execute all these powers within the limited time prescribed by the charter, otherwise, she is transcending the powers granted.

It therefore appears, that the Potomac Company, having no powers at the date of her assignment, to make a continuous canal, or to condemn land, could confer no rights or privileges to the Canal Company, its assignee, which could give it a priority over the rail road, or any right against that company, which only takes the unoccupied margin of the river.

The Canal Company, possessing no derivative rights to priority over the Rail Road Company, as we have seen, plants herself upon her own original charter, and claims, that it gives her a precedence.

This brings us to the consideration of the original rights of the company.

This claim, it is said, is fully supported, whether the Canal Company be considered as obtaining her grant from the State of Maryland alone, or from the United States, Virginia, and Maryland.

These claims will be separately examined.

Let us first suppose the grant to be from Maryland alone, unaffected by any compact with other States.

At what time did the law of Maryland go into operation ? At what time was the Canal Company incorporated ? To what period had it relation ?

After having severally examined these questions, for the purpose of fixing a day, on which the rights of the Canal Company came into being, it is proposed, to examine the course of Maryland legislation, anterior to the date which shall be thus ascertained, and to determine its character and validity, as affecting the rights and interests of the parties.

1. At what time did the law of Maryland go into operation ?

The State of Virginia, in her first law, by its 21st section, had reserved to the States, the right within their respective territories, of tapping the canal by any canal they might think proper to construct; and had made her whole áct to depend upon the following proviso: “Provided that before this act shall take effect, the Congress of the United States, shall authorise the States of Maryland send Virginia, or either of them, to take and continue a canal from any point of the above named canal, or the termination thereof, through the territory of the District of Columbia, or any part thereof, to the territory of the said States, or either of them, in any direction they may deem proper, upon the same terms and' conditions, and with all the rights, privileges, and powers of every kind whatsoever, that the company have, to make the Chesapeake and Ohio Canal f with this additional proviso: “that in taking or extending such lateral canals through the District of Columbia, no impediment or injury should be done to the navigation of the Chesapeake and Ohio Canal;” and the State of .Maryland, in conforming and assenting to the act of the State of Virginia, added this express condition to her law, “that the act of Congress, contemplated by the 21st section of the Virginia act, shall provide some safe and practicable mode, whereby, such lateral canals may be secured to the State of Maryland, and whereby, also, it may be determined whether such lateral canals will injure the said Chesapeake and Ohio Canal, within the meaning and intention of the 21st section of the Virginia act.” On the 3d of March, 1828, Congress assented to the act of Virginia, and enacted as follows: “should the State of Maryland or Virginia desire, at any time, to avail itself of the right secured to it by the 21st section of the act aforesaid, to take and continue a canal from any point of the Chesapeake and Ohio Canal, to any other point within the territory of the District of Columbia, or through the same, on application to the President of the United States by the executive of the State, the President is authorised, and empowered, to depute three skilful commissioners of the United States' corps of engineers, to survey and examine so much of the route of such canal as may affect, in any manner, the navigation of the Chesapeake and Ohio Canal. The said commissioners shall ascertain, as far as practicable, whether the canal proposed to be constructed, will injure or impede the navigation of the Chesapeake and Ohio Canal, and report to the President, the facts and reasons upon which they may ground their judgment thereupon, which report shall be submitted to Congress at the session next ensuing the date thereof, for their decision thereon; and if Congress shall be of opinion, that the said Canal may be cut in the manner proposed,as aforesaid, without impeding or injuring the navigation of the Chesapeake and Ohio Canal, the same shall be conclusive thereon.”

It is perfectly apparent, that the condition above required by Maryland, was not fulfilled by this act of Congress, for, although, she had generally, given her assent to the law of Virginia, she had coupled that assent with a provision, which, at all times, left it in the power of either branch of Congress, or the executive, to prevent either Maryland, or Virginia, from conducting a canal through the District of Columbia; for whether it was at any time to be made, was to depend upon the fact, whether in the judgment of Congress the contemplated canal would injure or impede the navigation of the main canal; which, in other words, was an entire reservation to herself, of granting, or refusing, at any future time, the liberty demanded by the States of Maryland and Virginia, which, instead of being a compliance with the condition demanded by Maryland, that the right to make this lateral canal through the District, should be secured to her, was a direct negation of it. For, how could that right be said, in any manner, to be secured, which was to depend upon the judgment of one of the parties. Maryland, certainly never meant to submit her right, to tap the canal in the District,to either branch of the government, but expressly desired that Congress should secure it. How secure it? Why place it beyond the power of any one branch of the United States’ government to impede, obstruct, or prevent her right? It is apparent, that Maryland did not consider the act of March, 1825, passed by Congress, as a fulfilment of her prescribed condition, for upwards of a year after the act of Congress was passed, that State incorporated a company by the name of the Maryland Canal Company, with powers to make a canal through the District, from the Chesapeake and Ohio Canal to Baltimore, and by the same law, authorized the subscription of 5,000 shares in the Chesapeake and Ohio Canal Company, but she made that subscription dependent upon the following condition: “that Congress should enact a law expressly securing to the State of Maryland, and to any company incorporated by her, the right to take and continue a canal from any point of the Chesapeake and Ohio Canal, through the territory of Columbia, or any other part thereofthereby declaring in express terms, that Congress had never theretofore complied with the condition, which she had demanded, of securing to her, the fulfillment of the condition upon which her assent to the act of Virginia had been given; (act of 1826, eh. 211, sec. 21, an act for internal improvement) and insisting on an express recognition of it before her subscription to the Canal Company should be valid. It is true, that at the same session, December, 1826, at which the above demand was made by Maryland, she passed a supplement to the canal charter, which in its first section, recited that the act of Virginia, had been assented to by Maryland, and by Congress. And it is attempted to he shown from this, that Maryland had recognized the fulfilment, by Congress, of all the requisitions of her charter. But it is impossible to give such a construction to the words “has been assented to by Congress,” when we look at the character of the condition which Maryland prescribed; at the character of its attempted fulfilment by Congress ; and the explicit declaration made by Maryland at tbe-same session, that she demanded an express fulfilment of her condition. The words above adverted to, have no refex-enee, by any just construction, to the fulfilment of the condition, but only refer to the general assent given by Congress to the act of Virginia, without in any manner alluding to the compliance of Congress, with the conditions which she had prescribed. And in confirmation of this idea, we find that Congress, looking to the demand made by Maryland, on the 23d day of May, 1828, and not until then, passed a law expressly securing to Maryland, the right which she had demanded, and complying with the condition which Maryland had imposed on the validity of her charter. Neither the condition prescribed by Maryland, nor Virginia, had been complied with until that period, for both States required more than the consent of Congress to their acts; they required action on the part of that body; Virginia demanded that she should be authorised, by that body to make a canal through the District, possessing all the powers and privileges of the Chesapeake and Ohio Canal Company; and Maryland not only demanded this, but insisted, as an express condition of her law, that Congress should secure the right. Yet instead of doing this, although she had in general terms assented to the law of Virginia, her consent became qualified, and remained qualified until 24th May, 1828, with such stipulations in regard to the exercise of the right as to confer no authority, except one, dependent upon the judgment and opinion of a future Congress, and absolutely secured nothing to Maryland.

The general assent given by the act of Congress, of 3d March, 1825, by no means gratified the conditions of Virginia. She desired a law to be passed by Congress, to enable her to make a lateral canal, from the main canal, through the District, to her limits. Was this done? Let the first section of the law of Congress answer this question. cc Be it enacted, that the act of Virginia entitled, an act incorporating the Chesapeake and Ohio Canal Company, be, and the same is hereby ratified, and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed, by the authority of the said act of incorporation, to carry into effect the provisions hereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no farther.” Now, this assent is expressly limited to the right of the Chesapeake and Ohio Canal Company, to construct a canal. Not a word is said or intimated as to the right of Virginia, to make a lateral canal through the District. Indeed this section was not intended by Congress, at all, to have any reference to the proposed lateral canal, but the second section, exclusively referred to it, and we have seen, that it was no law authorising a lateral canal, but a law pointing out a mode by which some future Congress, possibly mght see fit to authorise it.

The conditions then prescribed by the States of Virginia and Maryland, upon which they had chosen to make their legislation dependent, were never complied with on the part of the United Stales, until the 23d May, 1828, and consequently, on that day, her law had validity for the first time.

2. At what time was the Canal Company incorporated ?

The 3d section of the charter declares, “that whenever one-fourth, or a gearter part of the capital stock of 6,000,000 of dollars, shall have been subscribed, then the subscribers, their heirs and assigns, shall be, and are hereby incorporated into a company, by the name of the Chesapeake and Ohio Canal Company.”

It becomes then important, for the purpose of fixing the date of the incorporation, to ascertain at what period $1,500,000 of the capital stock was subscribed, for it could not, by the express terms of the grant, until that time, have any life and being, for any purpose whatever. On the 14th November, 1827, on the supposition, that the conditions proscribed by Virginia and Maryland had been complied with by the United States, and that the law of Maryland, had consequently gone into operation, books were opened by commissioners, and the sum of $416,900, was only obtained of valid subscriptions; and upon the 24th day of May, 1828, only $562,700, were subscribed by persons, or corporate bodies, having any authority whatever, to subscribe. It is true, that in addition to those sums, the corporations of Washington, Alexandria, and Georgetown, had subscribed $1,500,000, but those subscriptions were entirely invalid, not having been authorised by either of their charters, and within the meaning of the aet, which certainly looks solely to an effective subscription, were, until some curative law was passed, absolute nullities. Such a law was passed by Congress, but not until the 24th day of May, 1828, at which period of time, and not before, the amount of subscribed stock, necessary within the charier, to bring the company into being, was obtained. The 24th day of May, 1828, constitutes the day, then, of the actual incorporation. If it be said, that the act of Congress, of that day, had a retro-active operation, and gave validity to the subscriptions, from the 14th November, 1827, the day on which they were made, so as to give a being to the corporation on that day, the answer is obvious, and is of a two-fold character. 1st. There could be no subscriptions which could give life to a corporation, until the law existed creating the corporation, and we have just seen, that no law existed on the 14th November, 1827, nor at any period before the 23d May, 1828, for it was on that day, that the Maryland and Virginia acts went into operation. Congress then, for the first time, having complied with the conditions, upon which those States had thought proper to make their laws dependent. And 2dly. If the law of Maryland, on the 14th November, 1827, had been an effective law, the act of Congress validating the subscriptions, could have no other retro-active operation, than as against the municipal corporations, which it would bind from that day; but it could not operate retro-actively, against the rights of third persons, or bodies corporate, which had come into existence, and been vested, in the intermediate time, between the date of the subscription, and the date of its validation, which we shall hereafter see, would be the effect of such retrospective action, upon the interests and vested rights of the Rail Road Company, and its effect upon the legislative power of Maryland, would of itself, conclusively show that such a doctrine could not exist. The charter of Maryland, may be considered as a mere offer to incorporate, and until the offer is accepted, according to her intent in making the offer, she may recall or repeal her offer. Thus, she offers to incorporate, if a sufficient prescribed number of subscribers accept. No valid subscribers within the intent of the law do accept; she then retains the power to recall the offered grant. Would it be within the power of Congress, by validating those invalid subscriptions, to render null and void ail intermediate acts of Maryland? By what'provision of her law, has she thus stripped herself of power? It is to be found no where, and to give a retro-active operation to the law of Congress, would clearly defeat the intent of Maryland, in the enactment of her law. If this validation is to have this effect, it must be sanctioned by Maryland law. A foreign legislative body can give no efficacy, to that, which the domestic law condemns. If this is thought to be correct, and it is not believed to be susceptible of a successful denial, the Canal Company had no corporate existence until the 24th day of May, 1828.

3d. To what period had the charter of the Canal Company relation ?

Does it date its right and powers from thé 23d May, 1828, the day on which, we have seen the charter was enacted ? from the day on which the stock was subscribed, according to the requirements of the charter ? or from the date of the Maryland act?

The course of Maryland legislation, from the period of the passage of her law, on the 31st January, 1825, until the Canal Company became incorporated by the required subscriptions, and by the entire fulfilment of the conditions upon which she had made her laws dependent, are not meant particularly to be adverted to here. They will be particularized, and commented on, hereafter. It will be sufficient, to bear in mind that Maryland had incorporated the Rail Road Company, and that the company had, anterior to the 23d May, 1828, adopted the contested route, and appropriated considerable portions of it, by actual surveys and locations.

The legislature of Maryland, upon the passage of her law, did not profess to give, or grant any thing. She merely declared, that she would grant a charter to make a canal, on certain conditions, whenever they should be complied with, and not before. It was a mere offer then, on her part, to the public, which only became obligatory when it should be accepted, and nothing more.

Relation, in its legal application to deeds, stands on intelligible principles, and is meant to carry into effect the intention of parties, by giving efficacy to such instruments, when they would be, otherwise, without the intended operation. Apply it here, and quite a different result is produced ; the intention of the parties is perverted; what was only intended as an offer, is converted into a contract; that which was intended, and by express terms, to take effect at some distant period, when the terms of the act should be complied with, is made to operate against intention, immediately upon the passage of the law. The doctrine of relation, it is believed, has never been held to subserve such a purpose. It is founded always on a principle of equity, and is a fiction of law, introduced for the attainment of justice, and to prevent circuity of action. Courts of law have applied it to uphold an equitable claim, against a subsequent legal litle. As in the case of certificates, and payment of composition money, the grant is made to relate back to the date of the certificate, and dates the transmission of the legal estate from its birth, so as to override, and defeat all intermediate grants. In this, there is the greatest justice and reason, for what could be more unjust or unreasonable, than to permit the highest and clearest equity—an equity arising from the payment of the purchase money, to be defeated by a subsequent grant, merely because it happened to be clothed with legal solemnities. But in the case before the court, no equity grew up with the enactment of the law, to be proteced by relation. No effective act was done under the statute, until the Rail Road Company .had. obtained a legal existence, and had given to itself a locality. Not only was no effective act done, until this event, took place, but nothing of any kind was done by any one, through which he could, by any possibility, sustain any injury. For what purpose then, it may be emphatically asked, should the doctrine of relation be called in? If its aid is sought, it would here subvert all the rules upon which that salutary-fiction of law has been established; it would defeat legal rights, not for the purpose of supporting an anterior equity, but to give a subsequent legal right the preference.

It would be difficult, nay impossible, if the doctrine of relation does exist, and is applicable in the case of offered corporations, to say what would be the limitation to it. Twenty years could be no bar, for although that furnishes the ordinary presumption against a right, yet in the case of an offered corporation, there are no persons in esse, against whom the presumption could operate. The right only begins to exist, when a sufficient quantum of stock is subscribed, and that may be for an indefinite period. In short, the only possible limitation which could exist, would be the arrival of a period, when the inexecution of the law might give rise to the idea, that it had become obsolete, which would in truth extend it to an indefinite period; for courts of justice, it is believed, would hesitate in pronouncing, that from lapse of time alone, a law existing in the statute book, though dormant, and unexecuted through the whole period, had become a dead letter.

In this view of the subject, what would be the result of the application of the doctrine of relation to a subject of the character now before the court? An example will illustrate its evil consequences. A law passes, authorising the formation of an incorporated company, to make a canal from the sources of the Potomac to its mouth. It is to date its charter from the time its capital is subscribed, and it has imparted to it the eminent domain of the States of Virginia, Maryland, and the United States, over the whole country watered by it, or its tributary streams—a district, of at least two hundred and fifty miles square, extending from the Chesapeake to the Alleghany, and from the highest sources of the Shenandoah to the head of the Monocacy. Nothing is done to bring this corporation into existence for half a century. Then it unexpectedly springs into life. What are to be the results ? Is it to overreach and defeat all intermediately formed canals, rail roads, and turnpikes; or are all these improvements to he absolutely terminated, and this entire region thus condemned, to forego the advantages of the useful progress of legislation, enlightened by the advancement of science— and for what purpose ? to gratify this notion of relation, which was never, even in the dreams of its framers, considered as applying, or at all referring to such a subject. Besides, its deleterious consequences to a whole region of country, its effects upon legislative action, would be novel and extraordinary.

It would deny to the legislature, in the absence too of all contract, its ordinary power, that of enacting and repealing laws, and under the same circumstances, would confide to one legislative body, the power of binding its successors to abstain from all beneficial and wholesome legislation. No principle which could operate this result, can be tenable.

In order to carry back the rights of the Canal Company to the date of the law, without regard to the time when the subscriptions were obtained, resort is had to abeyance, differing from relation, not in its consequences, but in the mode only of effecting them.

This doctrine of abeyance, like relation, is a fiction of law instituted to subserve the purposes of justice, and to carry into effect the wishes and intentions of the grantor ; and has hitherto, only been applied to estates of inheritance, for the purpose of passing over the reversion or remainder to the person designed to take it; as in the case of a grant to A, remainder to the heirs of B, B being still living—or of preventing the falling in of such an estate, and its re-investment in the crown; as in the case of the grant of a dignity, when by death of the crown’s beneficiary, there exists no representative, capable, by the grant, of taking it; the right is held in abeyance, until some one is in esse, capable of taking it by succession, according to the terms of the original grant. Wherever it has been applied, it has been of necessity. It is said in 3 Cruise Dig. 232, to be a doctrine which the law abhors, and a very distinguished writer on real law, as regards such estates, argues against its existence or necessity, altogether. Fearne, 361. Admitting its existence, it is said, in 1 Cru. Dig. 71, that in modern times, abeyance is not favored, because it is in restraint of alienation; and in the case of Perin and Blake, it was declared, that abeyance ought not to be extended, because, it prejudices the public, it ties up property, and leads to perpetuity. Harg. Law Tracts.

The application of the doctrine in this case, would be within none of the principles which gave rise to it. It must be remembered, that it is applied only in cases of necessity. Where a donor selects, as the object of his bounty, a person not in esse, having parted with his estate, there exists a necessity, that it should exist, to vest in the donee, when he comes into being to receive it; there, without either supposing the fee to remain in the donor to gratify his objects, which would be against the grant, or that it is in nubibus, the intentions of the donor must be defeated, and the donee could never take. But here the sovereign power is the grantor, which can impress upon the grant any powers of operation which it pleases: and can mould and modify it against all technical rules, whenever she shall please to do so. She might have pronounced, that the franchise should bear date from the law, without soliciting the aid of judicial fictions, to establish and give efficacy to her intentions.

We have seen that abeyance was introduced to give efficacy to estates, according to the intent of the grantor; this characteristic demonstrates its inapplicability here. The State never thought she had parted with any thing. Unlike the grantor or donor, who, by the words of the grant or gift, manifests a present intention to part with his estate, the State grants nothing, and means at the instant of her grant, to pass no right. She merely declares, that on the happening of some contingency in future, she will grant. She holds her law up, as an offer merely, and declares, that when any portion of her people shall accept that offer, they shall have certain powers imparted to them, and meant to place herself in no different condition, than an individual would be placed in, who would offer to contract with another, and who, without any reservation of right, possesses at all times before acceptance, the right and power to withdraw the offer. 4 Wheat. 228. Now, if the doctrine of abeyance is applied, the State is held to her offer against her clear intent; a different rule is meted out to her, from that which would be applied to individual contracts, or offers to contract, and there would thus be an utter perversion of the whole doctrine.

This fiction, like all other legal fictions, originated in that watchful anxiety which the law always manifests to establish justice. Yet it would be made to accomplish injustice, if it could bind the legislature against its clear intent, by giving efficacy to its law, as a grant from its first offer, when according to its express terms, it was only to take place in futuro, and that, on a possible contingency.

We have seen, that the doctrine of abeyance has, even in its appropriate sphere, met with the disfavor of courts of justice in modern times, as tending to perpetuities, and as prejudicing the public. If in its application to estates of inheritance, it has this obnoxious tendency, bow much greater would be its evils, when applied to legislative power? The indelible, constitutional land-mark of legislative power, is, that it shall pass no law impairing the obligation of contracts. Yet this doctrine of abeyance breaks up these constitutional land-marks, by contracting them within much narrower limits. And it says, although you make no contract, yet if you offer to contract, you shall make no law rescinding the offer. Can a technical principle of law, work this change in the fundamental law?

We have seen, that abeyance is a doctrine not favored, and which ought not to be extended, as it prejudices the public. Shall we apply it to a class of cases new in their character ? To cases of offered corporations, when its consequences are such, that it would, manifestly, greatly impair the public interests. The manner in which this injury may be thus inflicted, we have seen in examining the effects of relation, and shall not again advert to them, except to remark, that its establishment in such cases, must infallibly lead to a change in the legislative course which has been adopted since the revolution. The public interest would demand it. For offers of incorporation, although never accepted, would be a negative on the power of making any future, actual grant, in relation to, or interfering with, the offer made.

But it is supposed, that judge Story, in the case of the Dartmouth College vs. Woodward, 4 Wheat. 691, has recognised this doctrine of abeyance, with all its incidents and appendages, as applicable to corporations, such as the one under consideration, and the following language of that learned judge is relied upon for this purpose : “When the corporation is to he brought into existence by some future act of the corporators, the franchises remain in abeyance until such acts are done, and when the corporation is brought into life, the franchises instantly attach to it.” If the word abeyance, in the above extract, was used in its technical sense, it must be admitted, that the authority of the dictum goes to the whole extent for which it has been cited; but it is apparent from all the reasoning of that officer, that he used the word uábey anee” not in its technical, but in its popular sense, and as synonimous with “suspension.” Taken in this sense, it is entirely legitimate, and consistent with reason and authority, and that he does mean so to use it, will appear by what follows in the same paragraph of his opinion. He was endeavoring to establish the principle, “that there might be future springing contracts in respect to persons not now in esse,” or in other words, that the legislature might offer to contract, and that at some future time, when the offer was accepted, it would become an indissoluble contract, clothed with constitutional inviolability: His reasoning, which goes to illustrate his meaning, is as follows : “If the legislature were voluntarily to grant land in fee, to the first child of A, to be born thereafter ; as soon as such child should be born, the estate would vest in it. Would it be contended that such grant, when it took effect, was revocable, and not an executed contract upon the acceptance of the estate ? ' Take the case of a bank incorporated for a limited period, upon the express condition, that it shall pay out of its corporate funds, a certain sum as the consideration of the charter, and after the corporation is organized, a payment is duly made of the sum out of the corporate funds; will it be contended, that there is not a subsisting contract between the government and the corporation, by the matters thus arising ex post facto, that the charter shall not be revoked during the stipulated period ? Suppose an act, declaring that all persons who should thereafter pay into the public treasury a stipulated sum, should be tenant in common of certain lands belonging to the State, in certain proportions. If a person afterwards born, pays the stipulated sum into the treasury, is it less a contract with him, than it would be with a person in esse at the time the act passed ?” Now from this quotation from the opinion of the learned judge, it will be perceived, that in every case by him cited, he impliedly admits the legislative power to modify or repeal the proposed grant, or contract, until some right has vested under it, or until something has been done, manifesting the grantee’s consent, and he selects such a period, as the one which places what the legislature have done, beyond recall. This he could not have done, if he meant- any thing else by the use of the word “abeyance,” than suspension; for had he used it in its technical sense, he could not have so explicitly admitted, that they were liable to recall before they were vested or accepted. Indeed, if he had used the term abeyance in its technical sense, they would have been liable to recall or repeal at no time after the enactment; but the offer would have been invested with all the sanctity of an actual grant.

That in the case of grants to pious uses, or of grants in the nature of a dedication to public uses, the doctrine of abeyance is permitted, does not aid the case of the Canal Company. The grant is neither for the one purpose nor the other. But is a mere offer to grant to a joint stock company, when it shall be formed, certain privileges, with the right to take tolls, as a source of emolument to the company. Who enjoy the profits of this company ? Its emoluments are to be forever secured to the stockholders. But the canal when completed, is declared to be a public highway, it is still, however, subject to the right of exacting tolls for the benefit of the individual corporators, which strips it of the character ascribed to it, that of a dedication to public uses. The preamble of the charter cannot relieve it from the difficulty. “Whereas the completion of the work will be of great advantage to the people of this, and the neighboring States, may tend to produce a connected navigation between the eastern and western waters, may extend internal commerce and personal intercourse, between the two great sections of the Union, and may tend to consolidate and perpetuate the vital principles of the Union.” These are certainly public objects of great importance. But individuals in the pursuit of private emolument and gain, may accomplish works of great benefit to the public; yet it would be scarcely allowable to say, that they had, therefore, dedicated their services to the public. The same thing may be effected by corporations, and from the same motives, and yet where they are stimulated by tolls to accomplish these results, who would say, that therefore, their franchises were granted as a dedication to public uses? In the year 1810, a bank was incorporated in the town of Elkton, with the following preamble : “Whereas it is the opinion of this general assembly, that the agricultural, commercial and manufacturing interests of this State, will be promoted by the establishment of a bank, &c.” Now here are great public objects developed, and yet, will it be pretended that the bank thus established, was a dedication to public uses ? Yet if the preamble operates this result in the canal charter, it must also do it in the case of the bank. But reasoning upon this subject, is unnecessary. The canal charter is no grant, it is a mere offer; and if a case can be found any where, where rights were decided to be held in abeyance, upon a mere offer, then it will be time enough to enter into a more minute examination of this alleged dedication to public uses.

The case of the Town of Pawlet vs. Clark, 9 Crunch, 322, was no offer to grant, but a grant which professed upon the face of it, to pass from the crown six miles square of land, and all its right and title thereto; and in Lade vs. Shepherd, 2 Strange, 1049, the street was actually laid out and dedicated as a public highway, and in all the cases, where this fiction of abeyance has been applied, the grantor has clearly manifested his intention, to part with his interest in the thing granted. He had not merely proposed, or offered to do so, but had actually, by apt terms granted it, and the grant would have been prevented from its intended operation, but for the interposition of this principle.

But apart from all the above considerations, this fiction is incapable, in the nature of things, of application to the franchises of a corporation, not in existence. By the franchises of a corporation are meant, those rights which are in ■> separably incident to it when created, or such rights of eminent domain as the sovereign power may impart to it. The corporation is the principal,, the franchises are incidents. The one is the substance, the other the shadow; the latter cannot be without the former. As well might it be said, that a court harón could exist without a manor. The corporation, in the case of the Canal Company was not to come into existence until a fourth of its stock was subscribed, nor until all the conditions of the charter should have been complied with; as it was not in being, it could have no incident; there could not be any incidents to be in abeyance, when there was no principal. Existing rights 'may, by law, be placed in abeyance, but non-entities cannot be in that condition. It would require the famed omnipotence of an English Parliament to give life to incidents or franchises, and put them in abeyance, before the principal or corporation was created—when the inheritance is in abeyance, although intangible, it exists. When dignities are in abeyance, the right has in legal contemplation an existence. The doctrine would be perfectly comprehensible, if it could be maintained, that the corporation was itself in abeyance, for then its incidents might also be in the same condition ; but when the law passes, it is admitted, that it is not in existence, so that it could be put in abeyance; but it is to spring into life after the law, not by the law itself, but by the conjoint effect of the law, and of acts, aliunde. To avoid this difficulty, it is supposed, that after the franchises vest defacto by the creation of the corporation, by a kind of legal magic, or subtle metaphysics, there is a coalescence of the legislative act, which creates the corporation and its franchises, with the corporate act, which produces a party capable of taking the benefit of the grant; and that the franchise relates back to the original grant. But it cannot be perceived, that in order to give efficacy to this grant, it is necessary to resort to this ingenious system of reasoning. It must be conceded, that there may be future springing contracts with persons or bodies not in esse—is it necessary to give them validity, to say, that they must relate to the first proposition, or offer for the date of their creation ? By no means. They take their date from the time of their acceptance ; because, until then, it is no contract. 4 Wheat. 228. This is the case in ordinary contracts, and must be so in corporations; for charters are compacts between the government and those who assume to act under them. Nor is it necessary to resort to this ingenious refinement, to account for the modus operandi of the offered grant. The offer takes date from its acceptance, and the franchises remain in the grantor until such acceptance, at which period of time they are divested by the offered terms of the law, and vested in the corporate body; and thus remaining in the grantor, at all times before the offer is accepted, they are liable to be actually granted to others.

. If there be any truth in the above reasoning, neither the -doctrines of relation or abeyance, apply to this grant, and consequently, it must look for the first existence of its powers to the date of its incorporation, which period is to be ascertained, in the words of the law, “when one-fourth of its capital shall have been subscribed,” which we have seen never did take place, until the 24th day of May, 1828.

3. It is now proposed to examine the course of Maryland legislation, in matters which, may affect this company, from the date of her first law in relation to it; and to determine its character and validity, as affecting the rights and interests of the parties to this controversy. In doing this, it may become necessary occasionally to advert to some proceedings under these laws.

On the 28th February, 1827, a charter was offered to the Rail Road Company. On the 31st March, 1827, it became incorporated; the quantity of stock demanded by the charter, as preliminary to her incorporation, having been subscribed. Thus, the Rail Road Company was an actual in-, corporated body, nearly eight months before even an effort was made by the Canal Company to become incorporated, by obtaining subscribers to one-fourth of her capital; for it was not until the 14th November, 1827, that the latter company made any attempt] to give existence to her charter, and then we have seen, that the attempt was unavailing, the subscribers to the extent demanded by the law, having no authority to subscribe. And a period of nearly fourteen months elapsed, from the time of the incorporation of the rail road, before the Canal Company was incorporated; which never took place, as we have seen, until the 24th of May, 1828.- Anterior to this period, the Rail Road Company was not only incorporated, but had selected the very route in controversy, and had appropriated the greater part of it, by obtaining conveyances for some portions, and agreements for the transfers of other parts, and actually causing locations and surveys to be made. On the 3d of March, 1828, Maryland, by a supplement to the act for the promotion of internal improvement, passed the. following enactment: “Be it enacted that the treasurer of the Western Shore, bo, and he is hereby authorised and directed to subscribe for, and on behalf of the State of Maryland, for five thousand shares of stock,” with the following proviso: “Provided, that the said company shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of Monocacy river and the town of Cumberland, in Alleghany, and that it shall go into Washington, Frederick, and Alleghany counties.” Which provision we have heretofore seen, the Rail RoadCompany adopted, by causing her route to strike the river Potomac, at the Point of Rocks above the mouth of the Monocacy, and designating her route towards the town of Cumberland, on the margin of the Potomac river, through the counties of Washington, Frederick, and Alleghany. All these laws were enacted, and these proceedings had, before the Canal Company was ineorpoporated ; and when it was not known, and could not be known, whether she ever would be incorporated. For then it was uncertain, whether the necessary quantity of stock would be taken by valid subscribers, and whether the act of Maryland would ever go into operation, by a compliance by the United States, with the conditions upon which Maryland had made her act dependent, that is authorising Maryland to make a lateral canal through the District of Columbia, and directing some safe mode by which the right should be secured to her.

Now, if the view already taken be correct, that the company was not incorporated until the 24th May, 1828, and that the Maryland law by its express conditions, never became an operative law until the 23d May, 1828; it is undeniably certain, that the grant to the Rail Road Company, not only in its general terms, was a valid grant, but would have been equally valid, had the general assembly of Maryland, in the charier of the Rail Road Company itself, designated the very route in controversy, and that all the acts of the Rail Road Company designating and selecting this contested ground, are entitled to protection, as prior vested rights under her grant, which in this view would be anterior to the rights of the Canal Company, and therefore entitled to priority and protection. These positions are asserted on the hypothesis, that until the grant of the Canal Company was perfected by acceptance, it was always within the competency of the legislature, to repeal or modify her offered charter, or to grant rights and franchises inconsistent with the offered grants, remaining unaccepted, or which may become so in their ordinary and legitimate exercise.

All grants offered merely to existing or non-existing bodies, or to persons in esse or not esse, are liable to be resumed at the will of the power or sovereign offering the grant, at any time before acceptance, and to be re granted to other and different individuals. I do not, it' is perceived, here speak of those cases where there exists a present intention to grant, and where the instrument purports on its face to be a grant to pious or public uses; and where such instruments are upheld against the general rule of law, that there must be a grantee, as well as a grantor, or a corpus to be granted, and Avhich are held an extinguishment of the grantor’s right in the thing granted, and constitute exceptions to the general rule, but as will be perceived, of mere offers to grant—such offers (and all charters like the canal charter are offers merely,) are not contracts which cannot be violated or impaired by any kind of legislation. Any body of men, therefore, who shall become corporations under such offer, take and accept it, subject to the knoAvn power of the legislature, by any act anterior to such acceptance, to modify it, and can only hold it subject to such modification; or if the offer have been repealed, the acceptance is a nullity, and confers no rights. Such is the settled and undoubted law in private contracts, and the reasons which demands its application to grants from the public, are of a much more Aveighty and imperious character, as we have heretofore seen. That there may be future springing contracts, Avhich do not take effect instanter, but grow up, and become-binding upon the happening of some future event or contingency, is not attempted to be denied, or the principle at all impaired. But until that event or contingency does happen, (I speak of cases where no interest has or could vest,) it is insisted, that the proffered contract is liable to a partial or total recall. It could not, for example, be denied, that a grant to the unborn son of A, might at any time before the grant had vested by the birth of the grantee, be entirely abrogated. Nor could it be doubted, that the grant of lands by the legislature to any citizens of the State, who should do certain acts, could be resumed before any citizen had actually entered into a contract with the State, by the performance of the act. It is equally clear, that all the rights proposed to be granted by the canal charter, were liable to the like resumption, at any time before that charter went into legal operation according to its terms. And these rights were all resumed and re-granted by the State; or at least rights and franchises were granted by the State to the Rail Road Company of so general and comprehensive a character,—the power to construct a road in any direction, from Baltimore to the Ohio, that in their rightful exercise they became inconsistent with the offered rights, proposed to be granted to the Canal Company. And these rights had actually vested by grant and selection, before the Canal Company had come into being, nor would the principle be at all altered, by so construing the offered grant to the Canal Company, as to give it a special aud designated location along the valley of the Potomac, or to make it still stronger, along the left bank of the Potomac; for the grant is still, but an offered, unaccepted grant, and the anterior accepted grant to the rail road, being general, broad, and comprehensive, without exception, or limitation, to make a road any where between the designated points mentioned in her charter, clothes her with the right to take any route, not before actually granted.

The intention of the legislature, to make this grant to the rail road, without any limitation or reservation of any rights offered to be granted to the Canal Company, is not susceptible of successful contestation. The terms are as comprehensive as our language could make them; the grant is without any express reservation or exception, and without any words from which might be implied, any intention to make any exception. The construction then, admits of no amibguity, and becomes imperative. We can nowhere look for legislative intention out of the grant, but must confine ourselves in the ascertainment of intention, to the terms used by the contracting parties, in the instrument or charter by which they stipulate. Are we to construe this grant, general in its terms, as if it had contained an express exception of the offered rights, to the Canal Company ? If it were capable of a double construction, one limited, and the other general, it may be conceded, that we should take that which would be limited, for the purpose of upholding the anterior law. But we cannot give it a construction to produce this effect, because its phraseology is unambiguous, and should, by so doing, limit that which is unlimited, and meant to be so, if language is any just interpreter of intention.

But the legislative intention is manifested if possible, in more direct and specific terms, by the law of 3d March, 1828. By the charter of the Rail Road Company, in 1827, she had contracted, as we have seen, in general terms. By her subsequent law, she enters into a new contract with the Rail Road Company. She agreed to subscribe for $500,000 worth of the stock of that company, on condition that the Rail Road Company would locate her route, so as to strike the river Potomac, above the mouth of the Monocacy, and afterwards go through the counties of Washington, Frederick, and Alleghany. This proposition is acceded to; the rail road receives the money; the State becomes stockholders; and the company lay down their road, so as to go to, or strike the Potomac, and in pursuance of their con-. tract, locate their road onward, through the counties of, Washington, Frederick, and Alleghany, by the margin of;the' river. Here is a contract, as explicit and as binding as the,. original charter, and is in truth a modification, by a subsequent agreement of the original contract; for the grant in the orginal charter gave an umlimited and undefined range, at the will of the company, to select her route where she pleased; but this new contract restricted her to one designated and particular route ; she must strike the Potomac, and go through Washington, Frederick, and Alleghany. Now, if the Canal Company had no route designated in her law, it must be admitted, that so far as this law fixes the route of the rail road, the Canal Company's right, however general before the selection, would be gone as to this particular course; and if it was actually located by the law to follow the valley of the Potomac, on its left margin, so far as this route interfered with that, it would pro tanto be a repeal of the law creating the Canal Company. And what was the route to which she was confined by this new contract with the Rail Road Company ? The rail road must “ strike the Potomac." Now if this must be done, in the point of contact with the river, there is a direct and unequivocal interference with the route of the canal, and an equally clear interference throughout the whole controverted ground. Can it be believed that the legislature, through mere caprice and frivolity, would order this company to strike the river, and then go through the counties of Washington, Frederick, and Alleghany, without meaning that they should then take the margin? For what purpose are they brought to the river, and made to strike it? Was it merely that they might have their hopes of the most eligible route up the margin of the river defeated? Did they mean to invite them there merely to look at the route, then the more cruelly to frustrate their excited expectations; order them to retrace their steps; pass with immense cost and difficulty the elevated ridges of the Caloctin mountain, and its parallel ranges in their progress to the western country? Such an imputation, would 1 am sure, be doing great injustice to the intention of the legislature. Indeed the intention that they should take the margin, is apparent from the history of the proceedings of the Rail Road Company, in evidence in this cause. Engineers had been appointed 20th June, 1827, who proceeded to examine the routes proper for the rail road, and all the routes had been examined (among the rest, this,) before the passage of the law compelling the company to strike the river; for the engineers report, in a month afterwards, this route by the Potomac. It is fair to presume, that it was as well known to the legislature, as to the company, that two or more routes were in contemplation. The one by the margin of the river, and the other in a different direction through the three counties. Knowing this, the legislature invite them to the Potomac; they must strike it, and go through the counties of Washington, Frederick, and Alleghany. The legislature were anxious that they should not cross the river, but that they should keep on the Maryland side the whole way—they must go through the three Maryland counties. It is therefore conceived, that the canal charter was modified to the whole extent of the route designated by the Rail Road Company, in consequence of the contract made by this law with it. The subscription of $500,000, by Maryland to the Canal Company, furnishes no argument against the - views which have been taken of the intention of the legislature. If indeed it was contended, that the rail road charter had actually repealed the whole charter of the Canal Company, this subscription might well be resorted to, for the purpose of showing, that the State never meant to annihilate it, and of demonstrating her intention, not only, that it should continue to have life and being, but that it should go on and prosper. But no repeal is attempted to be shown; a modification and limitation of its range of choice, is all that is urged, as growing out of the rail road laws. Notwithstanding the limitation thus imposed, she had a right under her.charter from Maryland and Virginia, to have taken the Virginia shore of the Potomac, from the mouth of Savage river to tide, and under the operation of the combined charters from Maryland and. Virginia, she might have pursued the Virginia shores, until she arrived at a point opposite the Monocacy, or opposite any point which the Rail Road Company might select on the Potomac, as the point at which she would strike the river, then cross, and take the Maryland shore the whole distance to tide water. There is nothing unreasonable in the supposition, that Maryland thus intended to limit the Canal Company, to the one or the other of these routes, either of which, would have left the company in the possession of her chartered rights, subject to no other limitation, except what had been carved out and granted to the Rail Road Company. The canal practicability of either of the above routes is not capable of denial. The Maryland side throughout may have been more advantageous, but this will not in the least advance the argument on the other side; the practicability of other routes was foreseen; and all the State says, by her agreement with the Rail Road Company, is this, we choose to constitute you a favorite company, by giving you this route; we insist on your striking the Potomac; the Canal Company has other routes, let her pursue one of them, Maryland may have even thought it probable, that she might not materially interfere with the1. Canal Company, and she would not, if that company had fallen upon either of the other routes spoken of. Pennsylvania in her act of 9th of February, 1826, looked to this probability, when she demands the consent of Virginia to certain provisions of her act, provided the Chesapeake and Ohio Canal should be located on the south side of the Potomac. Maryland may have done the same; but whether she did or did not, it was sufficient for her to know, that it was perfectly practicable for the canal, to take one of her other routes, and it is apparent by thus interfering with her offered grant to that company, she did mean to throw the Canal Company upon such routes.

The assent of the Potomac Company did not at all interfere with Maryland legislation. Her assent was asked, because the Maryland offer of a charter would be in vain, ' unless she consented to the offer. If she professecí a willingness to waive her rights, then, and not until then, could it have been of any utility to have opened the subscription. But her assent subjected her to no inconvenience, nor bound her to any legal consequence. She could have withdrawn it at any time she pleased, anterior to the vesting of any legal rights. The whole charter was in fieri until the conditions which the law demanded, were complied with. And she could, and had a right at any moment before the 23d May, 1828, to have rescinded her assent, for it was not until that period of time, that the charter became valid. The anterior subscriptions on the 14th of November, 1827, were of no consequence, for they were not justified by the charter. It had not become a law, and not being such, they were null and void, and bound no one. The Potomac Company was, therefore, in every respect, in statu quo, as long as the grants of Maryland and Virginia stood as offers, and had not become binding, operative grants. She was precisely in the situation of either of these Staets; she could rescind her assent, as they could repeal their laws. It strikes me, that it would be a proposition entirely untenable, to say, that her assent placed her in the same attitude, as if she had actually surrendered her charter. The States had made no contract with the company. She had made none with them, for they had not even a potential existence—nor had she entered into any contract any where, incurred any obligation, forfeited any rights, or done any act, which by possibility could affect her, unless it was her subscription, and that we have seen, was utterly void.

The legislature then, had the power to modify her offered grant to the Canal Company, has so modified it, and spoken her intention in this respect, in language too intelligible to be misunderstood, and by such modification and partial resumption, and re-granting of a portion of her eminent domain, has given a perfect right and priority to the Rail Road Company in what she demands.

We have been hitherto examining the foundation of the claims of the Canal Company, standing alone, on the basis of Maryland law. But the same conclusions result, and the rights of the parties, as ascertained, remain fixed and undisturbed, even although a compact existed between the various grantors of the canal charter. If a compact exists, it is certainly only binding and effectual from the period when such compact was consummated. It cannot ante-date its ’ power to the time when negotiations between the parties commenced, and so derive a capacity to avoid and annul all acts done by the parties, or either of them, in the intermediate time between the first offer by either, and the acceptance of it by all. Each party was bound to know, that neither, by her mere offer, was stripped of her constitutional powers of legislation, and if she accepted such offer after legislative interferences, she must necessarily make her acceptance subject to all resulting consequences, and all intermediate grants. If this be true, (and it is not perceived how it can be denied,) and if it be also true, as has been attempted to be shown, that the conditions imposed by Virginia and Maryland, were never, in their letter or spirit complied with until the 23d of May, 1828, then it follows, ex consequenti, that the compact, if any, was never until that day formed by the contracting parties; and Maryland having in the mean time, granted certain rights and franchises to the rail road, which had become vested and valid contracts, such compact, when formed, was necessarily subject to the due and legal operation of such grant and contract; and became obligatory in every other respect according to its terms.

Whether Maryland, in this intermediate grant, acted in perfect good faith, might not perhaps be the subject of judicial inquiry. But in this, as in all other portions of her political history, her character stands unblemished, and is susceptible of entire vindication, even considering the grant in the light of a compact, and her first offer as intended to bring about mutual and binding stipulations. Her first law was passed on the 31st January, 1825, and her conditions were never complied with, until 23d May, 1828,—a period of three years and four months. In the mean time we find her complaining of the inefficient character of the first act of Congress, and in effect demanding the just and entire fulfilment of her conditions, by her law of 6th March, 1826, entitled, an act for the promotion of internal improvements ; and even after this, upwards of two years are suffered to expire, before the United States complies. In the mean time, all efforts to organize the company, legitimately, had failed, and she herself had, by her-law of December session, 1827, entitled, “a further supplement to the act entitled, an act for the promotion of internal improvement,” expressed her doubts, whether the work would ever commence. Indeed it must be admitted, that the whole work was entirely contingent on the possible subscription by the United States of $1,000,000. And when the uncertainty of such an event was looked to, it must have been doubted by all, even the most sanguine, whether it ever could progress. Under such discouraging circumstances, from the combined causes above adverted to, can it be said that there could be any breach of faith in the State undertaking to make her grants to the Rail Road Company, as she has done, and of interfering with her previous offer to the extent which she did' do by that grant ? How long was she to wait for the fulfilment of her conditions? She had in effect twice reiterated to Congress, the necessity of complying with her conditions by the act of 1826, above adverted to, and by a further supplement to the same law, passed the next year; a deaf ear was turned to these solicitations, and the case of the Canal Company was utterly hopeless. She was not bound to wait for ever, and a just respect for the rights and interests' of her people, demanded of her, that she should not longer be restrained in the march of improvement. She had waited as long as reason and propriety demanded, and nothing further could be sought by the most scrupulous adherent of good faith.

If it be urged, that the relations of Maryland with the Potomac Company should have prevented'her1 modifying the canal charter, the answer is in substance found in the previous part of these views. Her complaint against Maryland would probably be, that she had assented, and that she had become a subscriber to the stock of this company, and that she ought to have been in good faith consulted. But such a complaint would obviously have no just foundation. She assented to the law, as Maryland made her offer. Her assent was not binding; it could at any time have been withdrawn, and such being the law, it will be intended that the parties so understood these transactions. There was nothing therefore, to prevent her, alter the enactment of the rail road charter, from withdrawing her approbation; and not having done so, it is fair to consider her as yielding to any modification which Maryland had made in the canal charter; at all events, after the modification her assent, became subject to it. As to the subscriptions of the Potomac Company, they were utterly void, there being at that time no law to justify them, and of course the Potomac Company was under no obligations.

The above views of the whole case would entirely relieve me from the necessity of examining the question, whether any compact did, at all, exist between the State of Virginia, Maryland, the United States, and the Potomac Company, in relation to the Canal Company. But I will proceed to present my views upon that subject.

1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.

2. Was there any compact between the United States, Virginia, Maryland, and the Potomac Company, in the formation of the charter of the Canal Company.

In the exposition of grants, as we have seen, the grant itself is the only index of the thing granted, and that matters aliunde cannot be resorted to, for the purpose of limiting or enlarging the express terms of the grant. But where the enactment of two States is resorted to, for the purpose, not of showing an express compact, but of raising one by implication, a resort to some matters aliunde, may be governed by different considerations. In such case, the supposed compact rests only on inference and intendment, and the acts, usage and practice of the States, it may not be unfair to bring into review, to show the character which the parties meant to impress upon their laws. With these remarks the above questions will be separately examined.

1. Was there any compact between the States of Maryland and Virginia, in relation to the Potomac Company.

Anterior to the passage of the laws by which the Potomac Company was chartered, conferees, as we have heretofore seen, were appointed by the legislatures of the respective States, for the purpose of inquiring into the proper mode of improving the navigation of the Potomac river. This conference resulted, not in any compact, nor in any recommendations that any compact should be formed by the States, but merely in recommendations that a similar law should be passed by each State to establish a company for-opening the river, and similar laws of incorporation were passed by each State, chartering the Potomac Company, for the purpose of promoting an object no doubt greatly beneficial to both. The law of Virginia does not appear to have been of a dependent character, but the charter of Maryland rested on the condition, not that Virginia should enter into any agreement with her in relation thereto, but that she would pass a similar law, granting the same company the like privileges, and authorised a subscription for fifty shares of its stock, on condition that Virginia would subscribe the same. With these exceptions the charters of the two States were identical.

Besides the provision above adverted to, as contained in the Maryland law, each charter contained the two following sections, which are the only ones which have any relation to this subject:

“Sec. 10, And be it enacted, That the .said river, and the wtirks to be erected thereon in virtue of this act, when com- - pleted, shall forever thereafter be esteemed and taken to be J navigable as a public highway, free for the transportation of all goods, commodities or produce whatsoever, on payment of the tolls imposed by this act; and no other toll or tax whatsoever, for the use of the water of the said river, and the works thereon erected, shall at any time hereafter, be imposed by both, or either of the said States; subject, nevertheless, to such regulations as the legislatures of the said States may concur in, to prevent the importation of prohibited goods, or to prevent fraud in evading the payment of duties imposed in both, or either of the said States, on goods imported into either of them.

“Sec. 19. And be it enacted, That all commodities of the produce of either of the said States, or of the western country, which may be carried or transported through the said locks, canals, and river, may be landed, sold, or otherwise disposed of, free from any other duties, impositions, regulations, or restrictions of any kind, than the like commodities of the produce of the State in which the same may happen to be so landed, sold, shipped, or disposed of.”

By these references to the charters, it is insisted by the appellant, that a compact grows out of one, or all of the following circumstances.

1. The dependent character of the Maryland charter.

2. That the river and canals were declared highways.

3. The prohibition on both States to impose the tolls.

4. The concurrent character of all laws to be passed, to prevent the evasion of the revenue laws of the respective States.

5. The exemption of all produce from any tax, other than what is imposed on the like produce, by the State where it shall be sold or shipped.

1. From the dependent character of the Maryland law, it must be obvious, that no idea of a compact can arise. A State may affix any condition to her law, which she may think proper, however arbitrary, or see'mingly destitute of reason it may be, as to make any law affecting the rights of her citizens, dependent upon a law of a similar character being passed by a foreign Stale, operating upon her citizens, as a trespass law—a law regulating replevins, or any other law; yet who could say that if such foreign State complied with the condition, that there would exist an irrevocable, or any other contract between the two States, neither to repeal their law without the consent of the other? Whether the condition arises from caprice, or from high motives of interest or state policy, cannot alter the question.

Maryland had in truth high objects to gratify, by her enactment that her law should be inoperative, till Virginia passed a similar law. The Potomac river was a border stream; each State had great interest in the improvement of its navigation. She proposed to establish a company, and also to aid it with her funds ; but why should she do this unless Virginia would do the same? Why should she exhaust her resources, if Virginia would not lend a helping hand. She therefore chose to make her charter dependent. Her objects by doing so were, as she anticipated, all accomplished. Virginia was by this dependent system of legislation, stimulated to grant a charter, and also to subscribe her funds. These were the sole motives and objects of the legislature, in pursuing this peculiar course and manner of legislation.

Before proceeding to the examination of the other clauses in the charter, which have been relied upon, as creating a compact, it may be assumed, that a court of justice would in no case be justified in deducing inferentially, a contract, or compact, between sovereign States, from their mutual enactments, unless the existence of such compact would be necessary to give efficacy to their laws, and this assumption is founded on a reason so obvious, as that it need only be stated, to receive assent. By making concurrent laws, compacts, the sovereign power of the States would, most generally, be restrained in their accustomed power of legislation, over the subject matter of such laws, for in every case, each would be obliged to seek the assent of the other, to make valid any repeal or amendments. Such consequences ought therefore only to flow from clear expressions, and unequivocal indications of intention. Now when we are able distinctly to ascertain, that no motive could exist for a compact producing such results, and that the whole object which each State had in view, was effectually brought about without supposing such a compact, by a separate course of legislation, unfettered by any State agreement, there is no ground left for the inference of an intention to make an agreement. With these views, let us ascertain whether those clauses, which are considered as compacts, are not as effectually secured to the States without, as with a compact, and by the separate laws which they have enacted.

2,3,5. The charters declare that the river and canals shall be highways. The object of this provision was effectually established by the creation of a charter to the company in each State, and could never therealter be violated, either by the company, or by the company and one of the States combined, or by both States acting together, without the con-: sent of the company, or by either State acting separately, and alone. The company could not violate it, because such a course would violate her charter. Neither State acting separately, nor both acting together, could violate it, because it would be in breach of their respective grants to the company; nor could one of the States, acting with the assent of the company, repeal this provision of the charter, because it would be in direct violation of the charter granted by the other to the company, and would work a forfeiture of the grant in that State; and such a consequence, from the very character of the work, would utterly destroy the value of the subsisting charter; and would just as effectually guard one of the States, against such an injurious combination between the other State and the company, as any compact could possibly do. The same course of reasoning applies to the prohibition on each State, to impose other tolls, and to the clause exempting all produce from any tax other than what is imposed on the like produce, by the State where it shall be sold or shipped.

4. No deduction favorable to the idea of a compact, can justifiably be drawn from that clause, in each charter, which demands concurrent legislation, in all laws passed to prevent the evasion of the revenue laws of the respective States. Each State agrees with the company, that it will pass no such law by force of its own legislation, but that it shall at all times, be contingent upon the concurrence of the other. This is the contract with the company, for its security. And can it be doubted but that she has a perfect capacity to make such a contract, and that she never could violate it, if there was no compact ?

A fact in the history of these States will be adverted to, for the purpose of showing the entire improbability, that in the grants to this company, any compact was ever contemplated by the States to be made with each other. At the very sessions of the legislatures of Maryland and Virginia, at which these charters were passed, commissioners of these States were holding their sessions at Mount Vernon, negotiating a compact in relation to the navigation of this river. It was concluded in March, 1785, and in March, 1786, it was formally ratified as an irrevocable compact between the two States. Two of the articles are, that the river should forever be a highway for the commerce of the two States, and that all laws creating any obstructions, in, or to, the navigation of the river, were prohibited to each State, without the consent of the other. No clause in it, is found having relation to the Potomac Company, or to any previous compact having ever existed between them in relation to this subject, although they were engaged in making agreements in relation to the very subject to which the Potomac Company applied. If the charters were compacts, it is astonishing they should not have been adverted to in any way ; and if they were compacts, it is not to be credited, that they would in the short space of three months, have again negotiated about the subject of making the river a highway, and should have shortly after ratified that compact, when they had but just previously made one in relation to the very subject. The truth is, the States never dreamed that in chartering the Potomac Company, they had made any compact. This idea has been a modern discovery by the appellants.

This is clearly proved by their practice. Emendation after emendation has been made by the respective States, in the charter of this company, in great and important particulars, without asking the consent of the other. Is it probable this would have been done, had the assemblies of the States, or the company, believed, or thought, that any agreement had been made between the States, in relation to the subject?

2. Has any compact been formed between the United States, the States of Virginia and Maryland, and the Potomac Company ? This compact between the States is supposed to grow out of the following provisions.

1. The extra-territorial character of the legislation.

2. Its dependent character.

3. That the canal shall be a highway, &e.

4. That water rights are reserved to the respective States.

5. That each State has reserved the right to make a lateral canal in the District of Columbia.

1. The extra-territorial character of the laws. This can have no bearing on the question. Virginia could not legislate for Maryland or its territory, and certainly did not mean to do so, even with the consent of Maryland. She must have contemplated the entire re-enactment of her law in Maryland, to give it efficacy, and her wishes, in this respect, were carried into effect. It was foreseen, that the object to be created by her law, might at one time occupy her own territory, and again the territory of her neighbor, and would lie along the borders of each, hence this law assumed this character. She too, passed the first law, and it properly assumed the shape of one perfect and entire grant, as a fundamental law for the company, which, when by a re-enactment in the several States, it became a valid law, all might appeal to it where it could be seen at one view, instead of being obliged to look for disjointed fragments of the grant, in the statute books of four States.

2. The dependent character of the laws chartering the Canal Company. Most of the reasons urged for the shape which the Potomac charter assumed, in this respect, will apply to the one now under consideration. But in addition to the fact of the canal running into both States, and so requiring legislation on the part of Maryland, to give full efficacy to all the objects and views of Virginia, neither Virginia, Maryland, nor the United States, could have acted in this matter for their own peculiar territories, without obtaining the assent of the other. Their anterior history shows, they had lost all absolute powers of legislation in relation to the river, and could only again resume them, with the consent of the other. A reference to the compact between Virginia and Maryland, agreed upon in 1785, and finally settled in 1786, will show that it had been stipulated, that the river was forever to be a common highway for the citizens of those States, that neither State could obstruct, in any manner its navigation, and that all laws to be enacted by either, upon this subject, were to be invalid, unless assented to by the other. This ancient compact, satisfactorily accounts for Virginia demanding the assent of the two other powers, even if her law had been entirely in its form extra-territorial. For she was enacting a law, the consequence of which, in abstracting so large a quantity of water from the bed of the river, might in dry, nay in ordinary seasons, have had a tendency, by rendering the river less navigable, to have materially interfered with its value, as a public highway for the commerce of the two States, and interfered with the spirit of that agreement, which prohibited either State from obstructing the navigation of the river. The same considerations which induced the demand of the assent of Maryland, occasioned the same requisition on the United States, and the Potomac Company. The former had, by the session of the District, succeeded to all the rights of Maryland on the left bank of the river, so far as the same was within her territory, whether those rights grew out of the territorial sovereignty of Maryland, or by treaties, or compacts with other States: and the Potomac Company’s assent was also 'necessary to be asked, before the Virginia law could be operative, for the grant to her gave her rights over the river, and preferences in its navigation, which the new law materially interfered with. The demand of this “assent” on the part of Virginia, is then put upon the sound and proper principles, when it is placed on the combined facts, that the canal might be extra-territorial, and that consent to any legislation was a direct compliance with anterior stipulations; Maryland and the Unilid Stales yield their consent. The form in which this has been done, has been seized upon by the solicitors for the appellant, as indicating a contract by appropriate terms. Marlyand spreads on her statute book, the whole Virginia charter, and then declares that it is “accepted, ratified, and confirmed.” The United States refer to the act, and say “it is ratified and confirmed so far as to enable the company to make their canal in the District.” Now if it has been shown, that Virginia, by her proposition never meant to make the offer of a contract, hut merely to ask consent, as she was bound to do, to give efficacy to her law; then it is immaterial what were the intentions of Maryland, and the United Stales; they could not by any terms, make that a contract, which was never, by the State offering, intended to he such. There must, in every contract, be an aggregatio menlium—both must agree to contract, or there can be no contract; and here 1 might permit this branch of the subject to rest; but neither Maryland nor the United Stales believed they were entering into any compact, instead of re-enacting the whole Virginia law, section by section, and causing it to appear as an ordinary statute, as was done by the States in the organization of the Potomac Company, they ratify, confirm and accept the Virginia law, as their law. A difference is only created in the mode of legislation, none in its consequences. It is still a Maryland law, and as far as the United States and Virginia, or the Potomac Company were concerned, was liable like all her other statutes, to repeal, or modification, until the grant proposed to be made, had actually sprung into a contract, by the organization and acceptance of the company proposed to be created.

3. That the canal to be constructed shall be a common highway, and no other toll shall be imposed, &fc. This branch of the subject has been fully examined, when inquiring into the character of the grant to the Potomac Company, and having show'n that it constituted no compact, no further observation need be made in relation to it.

And 5. That water rights are reserved to the respective States for the canal, both in the States of Maryland, Virginia, and the District of Columbia. These reservations are .so clearly restrictive of the general grant to the company, and a maintenance of the power of each State over the subject matter of the grant, that it is difficult to perceive how a compact is creáted; they are but conditions annexed to the grant, which run with it. Liberties reserved out of the grant, which the grantor could not defeat, nor could either State; for such attempted defeat would work a forfeiture of the grant, and neither State could do any act, or exercise any power, which would annul an actually vested grant. We have heretofore seen, that every judicial tribunal is impelled by the highest considerations, not to make a compact of acts which are entirely susceptible of accomplishment without, nor to call in the aid of a compact, unless there is (if I may be permitted to use the phrase,) a “dig-nus vindice nodus.” The right of the States to tap this canal, any and every where, according to the charter, will forever exist without a compact, in virtue of the mere grant. For, let us suppose that one State attempts to interfere, to prevent the other from making a lateral canal, is not the whole charter forfeited in such other State ? Certainly; for it is the condition of the grant, that this liberty shall exist, and the very fact that a forfeiture would thus take place, secures the observance of this branch of the charter. But a Slate could not thus act, for it would be a violation of the grant to the company: she adopts and sanctions her grant, seeing and knowing all the conditions and reservations attached to it, and by thus sanctioning it, all the conditions are adopted, and the company could hold such State to a strict compliance with them.

Instead of there being any just foundation for the supposition of a compact, the inferences are all the other way.

These States were never known to leave their compacts, to inference from equivocal acts, but frame them with the precision which all governments do, when they enter into solemn treaties or compacts with each other. Is such the habit of the United Slates? Look at her compact with Georgia for the cession of her western lands. Look at all her compacts with the new States, when admitted into the Union, in relation to the public domain, within the limits of such new State. Every thing is framed with certainty and precision, and the only doubt which could possibly arise would he, not whether a contract existed, but perhaps on the construction of the contract. What has been the course of Maryland and Virginia? The only instance in which they ever framed a compact, we find that it was regularly negotiated by commissioners, and formally sanctioned by legislative enactments. It is not intended to be asserted, that these governments might not have made a pact, by a less solemn mode of proceeding; but their practice is resorted to, to rebut the inference of a contract in this case.

Their legislation too, in this particular instance, one would suppose, was guarded with some caution, for the very purpose of avoiding the possibility, that a compact should be supposed to exist. If Virginia had supposed she was about entering into a contract with Maryland, she would have contented herself with a simple, unqualified, demand of assent, which as the legislature of the nation, Congress was empowered by the constitution to give. But she evidently never looked to this kind of assent. She says expressly, “I only want your assent in virtue of your authority to legislate over the District.” Virginia looked to the local and peculiar powers of Congress, as a mere territorial legislature, and not to her great constitutional powers, to overlook and guard agreements made by the sovereign States of the Union, with each other. If such was not the object of the provision, what was expected to be obtained by it? Why thus limit her assent? Her assent in the form in which it was asked, was indispensably necessary, as we have seen, not only to gratify her objects in granting the charter, but in the fulfilment of her obligations, and it was not necessary to go beyond this, as she contemplated no compact, to which her general constitutional power of assent was necessary, thereby leaving nothing to inference, but clearly demonstrating that she proposed nothing else, than separate legislation on the part of each government; making the offered grant dependent only on similar grants, by other powers. But it is said by the appellants’ solicitors, ex cathedra, that this peculiar phraseology of the Virginia law, grew out of a desire on the part of that State, to exclude the conclusion, that by asking the consent of Congress in general terms, she would admit the powers of that body, constitutionally to legislate on subjects of internal improvement. If this were indeed her intention, there must have been an extraordinary portion of metaphysical subtlety engaged in the structure of her law; for who could ever dream, that a State in asking the assent of Congress to a compact between States, by the most distant implication, admitted the existence of power in Congress, to legislate over the subject matter of the compact? But the ascription of such intention to her, does' not in the least degree, prove, it was the desire of Virginia to have the consent of Congress to a compact, but she asks it, that by virtue of legislation on the part of Congress, the canal might be extended through the District, by a similar grant to the same company, and that thereby the objects of her grant might be effectuated.

Again, is no inference to to be drawn against the idea of a compaet, from the fact, that no visitorial power has been created over this corporation ? Is it to be conceived that sovereigns entering into a contract, to give birth to a perpetual corporation, would have provided no common tribunal to guard the sanctity of its grant; or who might be enabled, when the corporation was transcending its limits, or from mis-user or non-user, had failed to gratify the objects of those who gave it life, to restore to them the repossession of their imparted sovereignty? Yet, here isa corporation without a visitor. They could not have left this matter to future stipulation; and it is unreasonable to suppose, that so grave and important a matter, had escaped the observation of the contracting parties. There being no provision on this subject, it is not unfair to conclude, that the States never thought of a compact, but looking solely to their acts, as separate grants of independent sovereign-ties, its legal supervision was supposed to be where that of every other corporation is, in the courts of the State creating it.

But who is it that complains of this violation of compact ? If there be a compact, it must be admitted that it is with parties always vigilant of their rights, and ever ready to maintain them. Has the history of the country furnished us with any evidence of remonstrances on the part of Virginia, or the United States, of an infraction of her contract by Maryland? Not a murmur has been heard; on the contrary, ihe Rail Road Company have grants, from both Virginia, and the United States. Is no deduction to be made from this, of what were the intentions of the governments ? Is not the inference satisfactory, that they never supposed any compact had been made to be violated, and that Maryland had done nothing, except what she had a right to do.

Having thus shown, that the Chesapeake and Ohio Canal Company had no derivative rights, which over-reached the Ohio Rail Road Company, acquired from the Potomac Company, and that the Rail Road Company has in the adoption of her route, done nothing which could interfere with the rights of that company if it were yet in being, and consequently with the right of the Chesapeake and Ohio Canal Company derived by assignment from it.

Having shown, that the Chesapeake and, Ohio Canal Company could only date its charter from the 23d May, 1828, when Congress complied with the provisions and conditions upon which the States had made their charter legislation to depend, and that it must date its incorporation from the day when the subscriptions of the corporations of the District were confirmed by Congress, both of which periods were subsequent to the charter of the rail road, and its adoption of . a route.

Having shown, that the Rail Road Company could not be over-reached by any supposed relation or abeyance of the rights of the Canal Company, and that there existed nothing to prevent the State of Maryland, at any period anterior to the vesting of any rights under her offer of a grant to the Canal Company, from either repealing it in toto, or modifying it, whether its charter be considered either as the offering of Maryland law, or growing out of her concurrent legislation with other States.

Having shown, that the State of Maryland has restricted the Canal Company in, her choice of her route, and fixed the route of the Rail Road Company therein, that the law is constitutional, and gives the latter company a priority.

And finally, .having shown that there exists no compact between Maryland and Virginia, in relation to the Potomac Company, or between the United States, Virginia, Maryland, and the Potomac Company, in the creation of the Canal Company, which could prevent the legislation of Maryland, or interfere with the rights of the Rail Road Company, acquired under such legislation.

I shall proceed in conclusion, to make some observations on the comparative equities of the respective parties.

It is objected against the equity of the complainants, that they hastily fastened themselves upon their route on the left hank of the Potomac, during a period of time when the Canal Company was unable, from a want of organization, to select that route, and their conduct in this respect, has been assimilated to one who takes advantage of the inability, or minority of a feme coverl or infant, by seizing upon, and appropriating their property ; and it is emphatically asked, whether equity in such a case would not interfere ?

But it is not perceived, that this haste emanated from a desire to oust the canal of its rights or privileges, but to appropriate that which she believed she had a right to occupy; and if she had the right to occupy it, it would be difficult to impute to it, the want of equity in its proceedings, in endeavoring to gain possession of the right, whatever knowledge she might have of the movements of her antagonist. But let us trace the history of this matter a little farther, and its developments will show the futility of the argument. On the 7th December, J 826, General Bernard had reported to Congress, tliat the proposed canal would cost 22,000,000 of dollars. Maryland, at the session of its legislature of that year, had expressed her doubts, whether the canal would ever go into operation. Maryland had made her subscription to depend on the subscription by Congress, of a million of dollars, and it must be admitted that when the magnitude of its cost was taken into consideration, together with the uncertainty that Congress would ever give her aid, that the circumstances which surrounded the proposed corporation, were such as to make the most sanguine doubt of its success. In this state of things, the project of a rail road was started, as one the most likely to accomplish the object in view; and the history of all the legislation in relation to it, as well as all its proceedings from its organization, manifest that there was no tardiness or delay at any time. The same expedition existed in the commencement of the undertaking, as at the period when the conduct of the company is considered so objectionable. A brief reference to these laws and proceedings, will show the activity of all concerned, and at a period too, when that company could have anticipated no collision with the Canal Company. On the 28th February, 1827, the rail road was incorporated by Maryland. On the 8th March, 1827, it was incorporated by Virginia. On the 31st March, 1827, the whole amount of stock was subscribed. On the 23d April, 1827, the company was organized. On the 20th June, 1827, engineers commenced their surveys to the Ohio from Baltimore. On the 5th April, 1828, the engineers report the route by the Potomac. On the 5th May, the board of engineers adopt the above report. On the 9th May, 1828, advice of counsel is asked, as to the mode of acquiring title to the adopted route. On the 12th May, 1828, the board of engineers were directed to proceed on the adopted route, preparatory to construction; and on the 14th May, 1828, agents were despatched to obtain title to the adopted route.

Thus, we perceive that this company moved with celerity from the very beginning. Even at a period of time when no one would have dreamed of any collision, only ten days was suffered to elapse after the passage of the Maryland charter, before one was also procured from Virginia, and in less than six weeks thereafter, notices had been given of the meetings of commissioners to take stock. The stock had been subscribed, and the company duly organised. No greater expedition was used afterwards than before. If there had been any alteration in the conduct of the company, if from being dilatory, it had become active and energetic, there would have been greater force in the argument. But where its character has been marked with energy and dispatch throughout, it would be difficult to impute that dispatch at any given period to inequitable motives, when, at one period at least, it would have been impossible to ascribe such considerations to the same actions.

But this conduct of the Rail Road Company is susceptible of other views, which make the course they pursued entirely justifiable, On the 3d of March, 1828, Maryland had subscribed $500,000 to the company, on the condition that she would go to the Potomac—or in other words, the State, as we have seen, not only gave her liberty to take that course, but invited it by the strongest considerations, and having thus manifested her wishes, and conditionally fixed her route, could there be a want of equity in pursuing that course, and appropriating it to herself? Her creator, and that of the Canal Company, the fountain of law and justice within the territories of Maryland, its legislature, had invited it to this course, and in obeying so high a manifestation of the public will, the charge of inequity against her, would seem to be entirely destitute of any just foundation.

But let us look at the picture on the other side, and we shall find that imputations of a want of equity are made upon much more solid foundations. While the charter of the Canal Company was yet in fieri, its slock, as we have seen, not subscribed for within its charter, and of course its route not designated, the State of Maryland, by a supplement to the very law, subscribing f500,000 to the Canal Company, subscribed the same sum to the Rail Road Company, on condition that she went to the Potomac river, and through the counties of Washington, Frederick and Alleghany. Notwithstanding this appropriation of the Potomac route by the legislature of Maryland to the Rail Road Company, the Canal Company take the subscription of Maryland, and still insist upon having the very route, thus otherwise appropriated, under the supplement of the law, which gives her the money. Had the Canal Company acted with perfect good faith to the State of Maryland, after taking her money, she ought to have considered herself, whatever were her absolute rights, as having waived her right to take that course which Maryland had appropriated to the Rail Road Company. It is true, Maryland had in fact only assumed the character of a stockholder in both these companies ; but it is impossible to lose sight of the idea, that she never looked to her own emoluments as a stockholder, in making these subscriptions, but acted the part of a generous patron to those works, both of which she was, no doubt, anxious to see accomplished, and that for this purpose she generously and liberally advanced the public funds. Was it just and equitable therefore, in the Canal Company accepting this bounty, thus munificently bestowed, with full notice of the wishes and views of her creator and benefactor, to frustrate and defeat the only object the State had in view in extending her aid to the rival company, by declaring that she would have the very route, upon the selection of which alone the State had declared, she would bestow her bounty on the Rail Road Company ? Her course was too plain to admit of hesitation. She ought either to have reunded the money, or have abandoned the route.

Before closing this opinion, I beg leave to subjoin a few remarks in relation to the derivative rights of this company, which were neglected to be made under the appropriate head.

If the Canal Company, as the assignee of the Potomac Company, still possesses the power of condemnation, it is not a power in aid of the Chesapeake and Ohio Canal, but in furtherance of the objects of the' Potomac Company. If land is condemned under her powers, derived as assignee, these lands must be applied to the objects designed by the charter of the Potomac Company, and not to the objects designed by the Canal Company. In other words, she has no right to condemn under one charter, for the benefit of the other. Now the Canal Company have adopted the left margin of the Potomac for the canal, and can have authority to condemn for such a purpose, under that charter, and for that only. As long as she adheres to her route, her rights of condemnation, under her Potomac charter, are gone. So far from intimating a desire to abandon such route, she is insisting upon it here. It is clear, that all her condemnations must be made under her canal charter, or they cannot sub-serve her purposes; for she cannot use them for her canal, if they are condemned under the Potomac Company1 s charter. She presents herself to the court in the attitude of an entire abandonment of the Potomac charter—Why? Because she has adopted the route of one continuous canal from tide to the mouth of Savage river, under her new charter, and so far at least as the left bank of the river is concerned, looks entirely to the new, and not to the old Potomac charier. If she means to exercise rights under the Potomac charter, they must now be in the bed of the river or on the Virginia shore. In this point of view, her rights from the assignment, would be of no consequence to her in this controversy.

From all these views, it appears to me, that in point of law and equity, the Rail Road Company is entitled to the route she has selected, and I am therefore for affirming the decree of the Chancellor.

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Dissenting Opinion

Dorsey, J.,

also dissented, and delivered the following opinion:

In forming an opinion on the various questions presented for determination, by the argument in this case, I shall endeavor to divest my mind of every impression, which may have been made by the eloquent and forcible appeal, preferred to the patriotism and sympathies of this court, by the appellant, to induce them to urge on the argument of this case against the consent of the appellees, out of its regular order. And this, I am the more easily enabled to do, by finding, on a careful examination of the record, that the harsh and uncharitable remarks made on the conduct of the President and Directors of the Baltimore and Ohio Rail Road Company, according to my view of the subject, are wholly unwarranted by any unprejudiced consideration of the facts in the case; and that the appeal made to stimulate the patriotic energies of the court, to an unwonted expedition, for the avowed purpose of removing the alleged “only obstacle” to the speedy completion of the greatest of national objects, the consolidation and perpetuation of the vital principles of the Union, and the establishment of a connected navigation between the eastern and western waters, cannot be followed by the contemplated result; as the counsel for the Canal Company, in his concluding argument, has distinctly announced to us, that this company has not been chartered by Pennsylvania; not having agreed to accept the act of assembly of that State, by reason of the numerous conditions on which it was granted. That under present circumstances, more favorable terms could be obtained by them, is an event, in my estimation, not to be anticipated. So that this magnificent and stupendous enterprise is disrobed of its national character, and consequently, high prerogatives, and sinks into a mere “local” canal, whose extension is limited by the confines of Maryland. I shall also view this case, unprejudiced by the assertion, that the canal being a public highway, its charter should be most liberally and favorably construed; whereas, that of the rail road establishing “a close,” “odious,” and “enormous monopoly,” should be visited with a most rigorous interpretation. Because, I regard a rail road, practically and beneficially, as great a convenience to the community, as any public highway; and those features of monopoly, so much complained of, are the inseparable attributes of that mode of internal improvement, deprived of which, it would lose all its value, and could no longer be esteemed as of public utility.

The first inquiry, which I shall examine, is that, most elaborately and ably discussed on both sides : at what time did the rights of the Chesapeake and Ohio Canal Company accrued Are they to relate to the date of their charter, or to the period at which, by the terms of that charter, they became a body corporate ? As to the Rail Road Company, in this respect, there has been no controversy. Whether the accrual of their franchises be carried back to the time of the adoption of their charter, or to the time of their organization under it, is immaterial, as far as this first inquiry is concerned. The time, at which they assumed their corporate charter, were duly organized, and made the location of their rail road, being conceded. With respect to the Chesapeake and Ohio Canal Company, a preliminary question is presented: at what time, agreeably to the provisions of their charter, was the amount of stock subscribed for, requisite to give them a corporate existence ? By the 3d section of that law, it is enacted, “that whenever one-fourth, or a greater part of the said stock, shall have been subscribed, in the manner aforesaid, then the subscribers, their heirs and assigns, shall be, and are hereby declared to be, incorporated into a company, by the name of the “Chesapeake and Ohio Canal Company.” The object of the legislature, in imposing this condition precedent, to my mind is most manifest; they designed that the powers and privileges created by their charter, never should vest, until the number of subscribers was such, as to afford a guaranty, or strong probability of the completion of the work, of which the company were to assume the execution. Nothing but a subscription by bona fide, competent subscribers, could gratify this postulate of the canal charter. If for a proposition, so undeniable, an authority were required, one, of the most conclusive character, may be found, in the case of the Salem Mill Dam Corporation vs. Joseph Ropes, 9 Pickering, 189.

One-fourth part of the capital stock of the Chesapeake and Ohio Canal Company, is $1,500,000. In November, 1827, the whole amount of subscription, for the canal stock, by competent subscribers, was $416,900. In January, 1828, it was $562,700. In these estimates are excluded the subscriptions of $100,000 by the corporation of the city of Washington; of $250,000 by the corporation of Georgetown; and the like sum by the corporation of Alexandria; because, by reference to the charters of those cities, it will be seen, that they were incompetent to make such subscriptions: their powers being all of a strictly limited, municipal character; and by no possibility of construction, could they be made to convey an authority to bind those cities for the amounts which had been subscribed. They could levy money on the property within their respective jurisdictions, only to a very small amount; and such levies, they were enjoined, to apply to defraying the expenditures, incident to the execution of the specially enumerated powers with which they were invested by their charters. The subscriptions of stock, by the corporations of Georgetown, Washington and Alexandria, as before stated, formed therefore, no part of that subscription, which was required by the charter of the Chesapeake and Ohio Canal Company, to give that. company a legal entity. And, that such was the admitted fact, anterior to-the present controversy, is demonstrated by the act of the Congress of the United States, passed May 24th, 1828, entitled “An act to enlarge the powers of the several corporations of the District of Coiumbia, and for other purposesby which it is enacted “that the corporation of Washington, the corporation of Georgetown, and ' the corporation of Alexandria, within the District of Columbia, shall, severally, have full power and authority to subscribe and pay for shares of the stock of the Chesapeake and' Ohio Canal Company; and all such subscriptions as shall have been already made, by either of the said corporations, shall, and the same are hereby declared to be valid, and binding on the said corporations respectively.’7 If these corporations, anterior to May, 1828, possessed the power of subscribing for canal stock, why the necessity for an act of Congress expressly creating this power, and declaring valid and binding on the said corporations respectively, subscriptions, by them, antecedently made ?

But it is contended, that conceding the invalidity of these subscriptions, prior to the passage of the act of Congress, to constitute the amount of stock, requisite to the existence of the contemplated corporation ; yet, that by the act of Congress, they were rendered valid, to all intents and purposes, in the same manner, as if this act of Congress had simultaneously passed. There is nothing in the act of Congress itself, in the principles of justice or the ánalogies of the law, to sustain this position. There are no words, in the act of Congress to favor such a construction. The terms used, are as precise, unequivocal, and comprehensive, for the purpose designed, as language could make them—the subscriptions were to be valid and binding, on the said corporations, respectively; and on them only. Not as is now insisted, tobe “valid and binding” to the destruction of rights, legally and intermediately invested in third persons. Retrospective laws, upon every principle of sound interpretation, are to be construed strictly, and not extended beyond their obvious, natural import. Upon what grounds, then, can it be seriously urged, that the meaning of Congress, in this case, is, not only to be carried to the fullest extent, which the import of the terms used will bear ; but that you are to add to the enacting clause, without one word or circumstance indicating such a legislative design, “that those subscriptions should be as valid and binding upon all persons whatsoever, as if those corporations, at the time of subscribing, possessed the power then given them by this act of Congress ?” To have passed such a law, to operate in a contest like the present, was not within the powers of Congress, had they designed to exercise such a right. Even though it should be conceded that they could have made the subscriptions, from their date, valid and binding on the State of Maryland, which I deny; yet they could not have made them so, on the Baltimore and Ohio Radi Road Company, whose intermediate rights were lawfully acquired from the State of Maryland. Such an attempt would, not only have been inconsistent with the plainest dictates of justice, but subversive of the fundamental principles of civil government; and in spirit, a violation of that principle of the constitution, which forbids the passage of laws impairing the obligation of contracts. To impute to Congress, such an outrage, from an act of legislation, like that now before us, would be, to say the least of it, so uncourteous an extension of judicial power, that no court of judicature entertaining a just respect for themselves, would ever sanction it.

That a statute, affecting a corporation in esse, is only operative thereon from the time of its acceptance, is abundantly shown, by the authorities cited on the part of the appellees; if authorities for such a proposition could be deemed necessary. It is an assumption which needs no authorities, that the organization of a company under such a law, as that constituting the Chesapeake and Ohio Canal Company, is per se its acceptance. If then the rights of this corporation accrue at the instant they accept their charter, or in other words become a corporate body, it follows that the accrual of their rights did not occur prior to the 24th of May, 1828, and that, as far as mere priority is concerned, they must yield precedence to the Rail Road Company. But to evade the force of this sound, natural, and common sense inference; it is contended that as soon as the Chesapeake and Ohio Canal Company springs into being, they are invested with all the rights and powers designed to be conferred on them, not from the date of their actual existence and investiture, but from the date of their charter. And this doctrine has been insisted on, upon two grounds; on one or the other of which it is said to be clearly sustainable. First, it is contended that from the nature of the franchises, about to be erected, they must be regarded from the date of the charter, as “ rights sui generis, with a latent and indefeasible capacity of future attachment,” &c. To sustain the legal recognition of this class of “rights,” unintelligible, to minds not perverted by the most subtle refinements of legal technicalities, it was to have been expected, that at least some adjudication would have been adduced. In this expectation however, I have been disappointed. And being, in accordance with the spirit of the times, opposed to innovations on the common law not resting on reason and justice, but the offspring of abstruse refinement and incomprehensible subtilties, I cannot prevail on myself, without stronger reasons than exist for it in the present ease, to admit the existence of this novel species of rights.

The ground which was next relied on in support'of the principle of relation, was, that from the date of the charter of the Chesapeake and Ohio Canal Company, all the rights with which it was intended to invest them, passed out of the States of Maryland and Virginia, and remained in abeyance, until the company was formed in whom they might legally vest: and that among these rights, passed that of eminent domain, over the whole section of country, watered by the Potomac and its tributaries, above tide water: comprehending perhaps a territory of two or three hundred thousand square miles. That the grant by Maryland, therefore, of any portion of this right to the Rail Road Company, was inoperative and void—she possessing no such power, could not communicate it to others. To support this doctrine, so astounding in its enunciation, nothing like an express adjudication has been produced ; but it has been argued so much at length, and with so much earnestness on both sides, that it might from that circumstance, be well imagined to be a question of great difficulty and doubt, on the decision of which the whole merits of the controversy depended. It was attempted to be sustained upon principles of reason and justice, of policy, of intention in the legislature, of dedication to pious and public uses, and as being clearly within the principle of abeyance. This state of abeyance, it did appear to me when the idea was started, in the argument, and subsequent reflection has confirmed my first impressions, was so wholly irrelevant and inapplicable to the circumstances of this case, that I regarded the invocation of its aid, as the last effort of extreme ingenuity, contending with difficulties insurmountable, by which it was threatened to be overwhelmed. This “absurd and unintelligible fiction,” as it is denominated by one of the most profoundly learned and able jurists, that has ever written upon the laws of England, is always odious and never tolerated, but from necessity. From necessity, because, without its admission the grant must fail to take effect; upon no other legal principles could it be sustained : without it, the intention of the grantor would be wholly defeated. 4 Kent. Com. 252. Is this the condition of the grant made' to the Chesapeake and Ohio Canal Company. ’ Can no company be organized, under the law, unless you adopt this wild notion of abeyance ? Might not every letter, word and object of the legislature have been gratified, and yet the right of eminent domain have remained in the State of Maryland until the Chesapeake and Ohio . Canal Company were in being, and competent to exert it. If so, and it is impossible to deny it, the essential ingredient, that which is inseparable from the doctrine of abeyance, the necessity of resorting to it, as the only means of effectuating the grant, is wanting; and the principle is therefore wholly inapplicable to the ease. This necessity does not depend on subsequent contingencies; it must exist at the instant the grant is made, or it can never exist at all. If the States of Maryland and Virginia had, in express terms of present grant, given to the Chesapeake and Ohio Canal Company the power of eminent domain, as now claimed; thus evincing a determination immediately to divest themselves of that right, there might have been some apology, for resorting to this far-fetched absurdity called abeyance. Because, the States having in express terms, parted with this right, and the Chesapeake and Ohio Canal Company, not being competent to take it, there is some pretext for saying, according to the fictions of abeyance, that it passed into the clouds, there to remain until the Chesapeake and Ohio Canal Company should spring into life, when it would descend upon them. But.have Maryland and Virginia attempted the commission of such an act of rashness' and folly, conceding to them the right to do so? which, however, I deny. Nothing bearing to it the most remote resemblance is to be found in their law. The 15th section, is the only one to be found on .the subject. That simply declares that, “ whereas it is necessary for the making of the said canal, locks, dams, ponds, feeders and other works, that provision should be made for condemning a quantity of land for the purpose ; “be it enacted, that it shall andhnay be lawful for the said president and directors, or a majority of them, to agree with the owners of any land, through which the said canal is intended to pass, for the purchase or use and occupation thereof; and in case of disagrement, or in case the owner thereof shall be a feme-covert, under age, non compos, or out of the State or county, on application to a justice of the peace of the county in which such land shall lie, &c. he shall issue his warrant to the sheriff, to summon a jury to value such lands, and upon payment of the valuation, the Canal Company are to be invested with the title thereto.” It is the intention of the legislature, to be collected from what they have said, that must control the construction of their act; so far as they have disclosed an intention to bind themselves, or part with their privileges, and no farther, can we hold them bound. There is nothing in the language of the act of assembly; or the subject matter to which it applies; or the nature of the corporation or franchises, which it was designed to create, tending to give a momentary countenance to the intent imputed to the general assembly, or to the interpolation of this extraordinary principle of abeyance. On the contrary, every clause and sentence of this act of assembly is in accordance with the common sense, sound legal axiom of the law, that those rights which pass not to the grantees, remain in the grantors. What motive could have induced the legislature, in this case, to have acted in reference to a different rule? If their object were, as no doubt it was, to expedite the formation of the Canal Company, would it have been, with most certainty effected, by the measures imputed to them? Would any individual have more willingly subscribed for stock, because the rights, which he thereby acquired, passed to him, not by immediate transition from the State, but in a way, which none but minds strongly imbued with legal subtiitics, not to say absurdities, could comprehend? Would it not have had a tendency to delay the filling of the subscription list, when those who were peculiarly interested in the subject, saw there was no motive for haste, that thejr might await their own convenience; as all power of revoking or impairing the grant, or creating a rival enterprise, had passed from the hands of the State. There was then no motive for inconvenient dispatch ; they might with safety wait, and speculate on events. Had the legislature designed to seal up their powers, in this incompre hensible mysterious abeyance, would they not have limited some period, at the expiration of which, they should be restored to them, in case the contemplated corporation should never be in a capacity to exert them ? It connot be said, that their omission to do so was the result of an entire confidence, that such a contingency could not occur. The reverse is the truth, as is demonstrated by their legislating for such an emergency, and declaring, that if the requisite amount of stock were not subscribed, the subscribers should he released from their engagements: thus sedulously providing for the protection of the interests of all parties concerned, but of themselves and their constituents. Is it fair to impute to our public functionaries such unpardonable negligence, or intentional violation of their duties? Should we not in candor presume, that the legislature never intended to divest themselves, to our injury, of those powers which were confided to them for our benefit, until that corporation came into esse, by which they were to be beneficially exercised—that until then, their sovereign power of legislation remained unimpaired, and needed no statutory reservation to preserve it? If such were the conceptions and designs of the legislature, and the language they have used, as it is, be in accordance with them, is there any stern, unbending rule of law, by which, in a case like the present, the manifest intention is to be frustrated, and sovereignty disrobed of its characteristic and noblest attribute, by the seal of abeyance being stamped on its powers? If in the constitutional code of laws of any civilized nation, the application of such a principle be tolerated, it should not find its way into the free and enlightened institutions of this country, by judicial legislation. From its introduction through any other source we have nothing to fear.

The right of eminent domain is only vested in the State, and can only be exercised by it, for the promotion of the public welfare. No transfer, or disposition can be made of it, for any other purpose. It is a power which is of the essence of sovereign government: and must always remain in a state, capable of being exerted for the public good. Such is the inherent, inviolable condition of its tenure. The State can pass no law, either utterly annulling the right, or suspending its exertion for an indefinite period, which could in anywise control subsequent legislation; until the right vests elsewhere, to be used for the public benefit, it always remains in the State. And even where the power to exercise it, is confided to others, they are not to be regarded in the character of its owners or possessors, but the instruments or agents, through whom its execution is effected by the State. Upon these grounds, the right depends, according to the fundamental principles of our government; and the interests of the community are deeply concerned in their inviolate preservation. In conformity thereto, should all legislative enactments on the subject, be presumed to have been made, unless such presumption be conclusively rebutted, by the terms of the laws themselves. The provisions of the charter of the Canal Company are in strict unison with such a construction; and are only made to violate it by an unnatural, wild, and strained interpretation ; or rather by ingrafting on the act, an entirely new provision, unnecessary, impolitic, and improper in its operation, and which never entered into the imagination of the general assembly. And for what purpose are we urged to do this ? That we may give to the Canal Company powers and priorities with which the law has not invested them; and convict a subsequent legislature of a breach of faith, and of duty, and of a violation of the constitution of the United States, which they had sworn to support. The rail road charter does impair, or designs to impair, the rights secured to the Canal Company, if any of the positions of the appellants be sustained, except that which relates to the true construction of the rail road charter itself. The rule is and should be, omnia rite acta fuisse prcesumuntur.” It applies, more strongly,, to the acts of co-ordinate branches of the government, than to those of courts of judicature. The power of courts of justice, of declaring an act of the legislature unconstitutional, in this State is drawn from necessity: and whilst I admit its existence, I am firm in the conviction, that it should never be exercised, but in a clear case, where the usurpation of authority stands free from doubt. If this high and delicate power be lightly or wantonly exerted, or in any other than cases where the mind harbors no reasonable doubts, as to the infringement of constitutional principles, it will lead to consequences, more ruinous to the public interests, than would attend its non-existence.

But where the necessity of introducing into this case, the magical term “abeyance ?” Its introduction, in construing the act of the legislature relative to the Canal Company, serves but to perplex and confound what is otherwise simple and unambiguous. The cases, referred to in support of it, are those of present grant, not where a mere mode of creating’a franchise or right, is provided for by law. They are cases where the grant must operate in presentí or never. Here there is no absolute, or immediate grant of a franchise, which must take effect instanter or never: nor is it a grant on a condition precedent or subsequent, by which irrevocable rights instantly pass from the grantors. But it is, as it were the mere offer of a bargain, a naked authority, which, until accepted in the mode prescribed, is revocable at the discretion of (he party from whom it emanates. This, surely, would be its condition, if this charter were the act of a private individual. Can a reason be assigned, why a different construction should be placed upon it, when regarded as the act of a legislative body ? What is a statute, .or ac-of assembly, but the mere expression of the will of the legislature ?

The adoption of the notion of abeyance makes the legislature to do, what is inconsistent with their duty, and irreconcileable with the attributes of sovereign legislative power: and imposes on them this absurdity, without motive or object; whereas their duty to their constituents, the interests of the community, and all sound legislative policy should have prompted them to a course of conduct, the reverse of that which is ascribed to them. They would be binding themselves for a period indefinite, when no equivalent obligation was imposed on the party with whom they designed ultimately to form a contract. No time was limited for the organization of the Chesapeake and Ohio Canal Company; none prescribed, when the important prerogative of legislating for the public good, according to the exigencies of the times, and the improved lights of science, might descend from the clouds, and light again on the sovereign legislature of the State. No human foresight could with certainty predict such a reinvestment of power. It could not be effected by limitations or length of time, until there be a party in esse, whose right might be impaired by such a positive or presumptive bar. If, therefore, a thousand years were to elapse, before any company were formed under the canal charter, the State, though enjoying none of the contemplated advantages, which formed the consideration for the cession of their rights, would still be hung up in this state of abeyance. It could not in any part of the territory, watered by the Potomac and its tributaries, open a public highway ; authorise the construction of a turnpike road; condemn, as is usual, the site of a town, or sanction any other internal improvement; not even grant to the United States or to itself, the land necessary to erect a fort or arsenal, no matter how urgent a necessity therefor, may have been produced by a state of war. Can a court of justice, unless impelled by a force of language which leaves no alternative, which admits of no other rational construction, be induced for a moment to countenance such a theory. According to my view of the subject, without violating the plainest principles of reason, justice, policy, the express words of the law, and the manifest intent of its framers, it is impossible to do so. What motive could have prompted the legislature to such a suicidal act ? May not every rational design, which can be imputed to them, be as effectually accomplished by their retaining the power, till it vested elsewhere in a capacity to be exerted.

And this state of abeyance, if once endured, must be interminable, unless, per chance, a Chesapeake and Ohio Canal Company should spring into existence: and consequently presents this strange incongruity; if no body corporate comes into being, in whom, by the terms of the grant, they can vest, the rights of the State are irrecoverably gone; by no possibility can they be re-acquired; but, if those rights vest in the grantees, there is some hope for the State. It may be restored to its lost inheritance, which it sold for less than a pot of porridge, by purchase, by forfeiture, or by the Chesapeake and Ohio Canal Company ceasing to have further occasion for its use.- Such an absurdity has no analogy in the law to sustain it: no reason, resting on expediency or necessity. It was suggested, that such a construction was necessary, in order to protect the Canal Company from the effects of conflicting, unjust, and inconsistent legislation. Has the constitution made any provision against such acts? If not, can a court of justice do so? Can they mould laws and constitutions as suits their pleasure ? And for what purpose are they now asked to do so? To prevent the legislature from exercising their inherent rights, lest according to the court’s notions on the subject, they may exert them unwisely, unnecessarily, or inconsistently. Of their conduct, in this respect, they are themselves the sole, the exclusive judges. The constitution has imposed on them no such interdict: it is neither our province, nor within our powers to prescribe it. To interpret their acts, or adjudicate on such a presumption, would be an indignity to the legislature, that this court could not permit themselves to offer. Were we to do so, it would be but a consistent extension of the same principle, to determine, that the general assembly having once legislated, their power of future legislation on the same subject, was in abeyance, lest they should act unwisely, unjustly, or inconsistently.

As respects the right of eminent domain, the same power has always been given to the turnpike road companies, that is conferred on the Chesapeake and Ohio Canal Company. Was it ever before suggested, that until the location of those roads were made, the right of eminent domain over the whole section of country in which their location was authorised, had passed out the State; and that no public highway could be laid out through it, until those turnpike roads were definitively located. On the contrary, have not the legistature, under such circumstances, been in the constant habit of opening public roads, as if no restriction had been laid on their powers: thus giving a legislative interpretation to their acts, and announcing their intention to be, the reverse of that which it is now insisted to have been.

According to this doctrine of abeyance too, if, immediately after the passage of the canal charter, and the assent to it by the Potomac Company, and before one share of stock had been subscribed, Virginia, Maryland, Congress, and the Potomac Company, had for reasons the most cogent, determined that the charter of the Chesapeake and Ohio Canal Company should be annulled ; and in pursuance of such determination, the Potomac Company had revoked their assent, and Maryland, Virginia, and Congress, had repealed their laws, yet it was competent to have proceeded and organized the Chesapeake and Ohio Canal Company; and when organized, they would have been clothed with the same powers and immunities, as if those repeals and revocation had never taken place: and this without the aid of any constitutional provision. Does this appear to be either reasonable or just? is it such an intention as ought to be imputed to the parties to this charter? Unless restrained by some constitutional, or fundamental principle of civil government, what one legislature enacts, the same, or its succeeding legislature, may modify or repeal, either in whole or in part. Until the corporate franchise was acquired in the mode pointed out by the canal charter; Congress and the legislatures of Maryland and Virginia, or either of them, as far as their respective interests were concerned, might at discretion have exerted this power. The right appears to me incontrovertible: the only question could have been the expediency of its exercise; and of this the legislature are the uncontrolled, exclusive judges. To restrain the legislative power, in the manner here attempted, is to fetter it with a restriction which no principle of constitutional law, of civil government, of reason, or of public policy, either authorises or requires. It is essential to our well being and prosperity, as a nation, that they who legislate for our benefit, should be left free to act, as their wisdom, prudence, and sense of justice, may dictate. And that in their sphere of action, in providing for the public weal, no restraints should be imposed on their powers, which are not to be found in our constitutional code, or in those fundamental principles which are the basis of all civil society. If, from misrepresentation, or ignorance of facts, or misconception of our rights or interests, they are led into error; they should be permitted to retrace their steps, to correct their mistakes. The existence of such a privilege is of the essence of legislative power: to withhold it would be productive of ruinous consequences. What is there in the charter of the Chesapeake and Ohio Canal Company to make it an exception to this general rule? Considered in its proper-light, it is nothing more than the offer of a bargain-, by three States, which, upon its acceptance, forms the contracting party on one side; the grantors. Until such acceptance, either of those States might revoke or alter its proposals at pleasure.. It is-in no wise-distinguishable from a similar offer made by a private individual in reference to his own-,domain.- -And the same-right of amendment, mod--, ification, or revocation of such offer would exist in the one case, as the other. With as much propriety may you apply this doctrine of abeyance, to the common cases of unaccepted contracts between individuals. As if A proposed to 13 to go to Washington, or pay me £10, and you shall have my horse, although B make no engagement to do either; yet A’s right to his horse is put in abeyance, and he cannot be restored to his right of property, by withdrawing his proposition.

The argument is, “that when the corporation comes into life, the franchise which existed before de jure, then vests de facto, and relates back to the date of the charter, having the same operation as if the Canal Company had then been in existence.” if this position can be sustained, there could be no such thing, as seniority in grants of land in Maryland, issued under the same order of the Lord Proprietary, or of the Governor and Council, or of the same act of the General Assembly of Maryland. And if by a subsequent order, a particular manor were granted, and afterwards a part thereof granted under a survey, authorised by the prior orders, the junior grant would have priority over the senior: contrary to the repeated decisions of all the courts in Maryland upon that subject. Indeed it would follow, that after the acts of assembly, or orders of the executive council, have, upon the terms and conditions therein specified, authorised the citizens of the United States to acquire title to all, or any of the vacant lands in the State, that those acts of assembly, or the orders of council, could not subsequently be changed or repealed; the rights of the State having been thereby, put in abeyance. And yet such repeals and modifications have uniformly been made, ana it never entered into the imagination of man, to quesiion their legality, or to carry back a title, beyond the period at which the grantee acquired an equitable title, by locating his land warrant.

Under our act of assembly, entitled “an act to incorporate certain persons in every Christian church or congregation in this State,” every religious denomination may become incorporated, by complying with the prescribed requisitions. By this notion, of relation to the date of the law authorising an incorporation, all of those corporate bodies come into existence at the same instant of time: there is no such thing as seniority amongst them; although, in point of fact, some of those Christian congregations had been duly incorporated, twenty years before others ever existed? or were known as a religious sect, or denomination of Christians. And if 500 years had intervened, it would not vary the principle. Should the State, for the encouragement of religion, direct its treasurer to divide $ 10,000 on the 1st January, 1833, amongst all the religious societies, incorporated under that act; a Christian congregation, conforming to the provisions of the law, fifty years afterwards, might, by this retrospective operation, claim its distribution of that, of which it was never designed to be a participant.

If the Chesapeake and Ohio Canal Company, by this doctrine of abeyance and relation, is, upon its being ushered into life, to be considered as clothed with the rights of the State from the date of its charter; upon the same principle, the proposition is incontrovertible, that they are invested with all the rights and properly of the Potomac Company, from the time of their assent to the canal charter: which assent was given, as it was designed to be, soon after the passage of the act of assembly under which it was made. They could no longer collect tolls, or do any other act authorised by their charter. Was such the design of the legislature ? Could they have intended, to prompt the Potomac Company to such an act of folly, and ruinous injustice to themselves ? That all their dearly bought rights and privileges should be suspended ; the public deprived of the enjoyment of the canals and locks constructed for their benefit, to gratify an absurd, unnecessary, technical fiction, which in truth, has no application to such a sub-, ject. If the'States are to be held as having made this wanton, useless sacrifice of their rights, human ingenuity cannot suggest a ground, on which, the Potomac Company can be rescued from a similar fate. Abeyance is equally applicable ; if it does not more strongly apply to acts of individuals and corporations, than to those of a sovereign State.

If, then, fifty or a hundred years had elapsed (as it well might and probably would, but for the subscription of if 1,000,000 obtained from the United States, at a moment the most auspicious,) before the Chesapeake and Ohio Canal Company had been warmed into life, and during that interval, the profits received by the Potomac Company, if any they could receive, had been millions; the whole of it would have vested in the Chesapeake and Ohio Canal Company: and no interest would be allowed the Potomac Company on their capital during this period. Would this be justice ? Could it have been the intention of the legislature, or the understanding of the Potomac Company, when their assent was given? Had the Canal Company been immediately organized by the terms of their charter, the stockholders in the Potomac Company, at the par, or nominal value of their stock, were to be adopted as stockholders in the Canal Company. In this situation of the parties, the proposed substitution administered justice to both sides; but can it be conceived, that either the legislature or Potomac Company intended, that if the organization of the Canal Company were delayed for a century, and during this period, the profits of the Potomac Company were four times the amount of its stock, yet it all became the property of the Canal Company. Such glaring injustice finds no support in the express words of the law, upon no principle of construction or implication does it receive the slightest sanction. Of the use and profits of their stock, the Potomac Company remained in the enjoyment, until they were substituted to an equivalent, by the organization of the Canal Company. So, upon the most extended idea of the transfer of the right of eminent domain, which can be insisted on with the the semblance of plausibility, to support it, the State continued in possession of it, until it vested in a being, in esse, competent to exert it for the purpose for which it exists. As was before remarked, the power of eminent domain is the inseparable attribute of sovereignty; and is held as a high and sacred trust, delegated exclusively, and to be exerted only for the public good. It is a right, in its nature unalienable, except to those, who, exercising it in consummation of the designs for which it was granted, are regarded, pro hac vice, as the agents or instruments of government. It cannot be granted to those who are incompetent to exert it: neither can the sovereign power disrobe itself of this, its noblest prerogative, nor place it in abeyance, or in any condition in which it is incapable of being exercised, where the interests of the public demand its exertion. These are implied conditions inherent in the nature of the power, and indissolubly attendant on its possession.

By the act of the general assembly of Maryland, passed in 1704, the vestry of every parish in the State, are empowered, upon the same principles that the Canal Company are authorised to exercise a similar right, to condemn two acres of land, for the building of a church or chapel of ease. And by an act passed in 1719, for the encouragement of iron manufacture, any person or persons were authorised, in like manner, to procure the condemnation of sites for forge mills, and iron works, each condemnation to embrace 100 acres of land. If the doctrines of the appellants be sustained, it follows, that, by these acts of assembly, the right of eminent domain over all. the lands in the State was put in abeyance, until every suitable site for such a purpose should be improved, which will not be the case, in all probability, for centuries to come. The State, therefore, after the year 1719, had no more power to pass any right of eminent domain to the Chesapeake and Ohio Canal Company, than after the passage of the charter of that company, it could communicate it to the Baltimore and Ohio Rail Road Company. Their argument proves too much; it annihilates their own rights, whilst it destroys those of the rail road ; it involves both companies in one common ruin. The same remarks are applicable to the act of assembly passed in 1704, to encourage the building of water mills, by condemning ten acres of land for each site. And, notwithstanding these acts of assembly, that banished to the clouds or the moon, the right of eminent domain, which only returned to earth, as the exigencies under those laws demanded its re-appearance, yet, at every session of the general assembly, from the year 1704, to the present time, that power had been exerted in opening public highways, &c.; and such, the exercise of this power, had produced at various times before the legislature, in court and out of court, controversies of the most important and warmly contested character; yet, wonderful to tell, neither the legislature by whom the laws were enacted, nor the lawyers, nor the judges by whom they were scrutinized and sustained, until the present trial, ever dreamed of the discovery, now made: that all their proceedings were erroneous, being founded on the right of eminent domain, which did not exist in the State, having taken its flight from Maryland in 1704.

The appellants say, it is comparatively unimportant “when and how the company was organised as a body corporáte, and acquired a capacity to be fully invested with their corporate franchises; whether in November, 1827, when the required quota of stock was subscribed; or in May, 1828, when the subscriptions of the district corporations were confirmed by Congress;” their rights take date not from that period, but from the day of the passage of the charter of incorporation ; and are, to all intents and purposes, the same, as if the corporation had been brought into immediate existence, by the charter itself. This is extending the principle of “relation,” in utter disregard of the reasons on which it is founded; and to an extent which is authorised by no previous adjudication. The cases to which it is applicable, as I have always understood the rule ; are where clear equitable rights are acquired, which cannot be defeated by him, in whom the legal title remains, but by an act of fraud or injustice; there a junior grant, in conformity to such prior equities, shall exclude or postpone a prior intermediate grant. To illustrate the principle, by the case of common occurrence in Maryland: A locates his warrant on Black Acre; returns his certificate; pays his composition money; but omits to consummate his title, by obtaining his patent. B afterwards executes his warrant on the same land; and, having complied with all the requisitions of the land office, receives his grant. A patent subsequently issues to A on his certificate. In contesting their rights, standing alone upon their patents, B has the prior and better title: but the court, looking to the anterior equities of A, regard his patent as coeval therewith; and to prevent fraud or injustice upon the principle of equitable “relation,” the prior equity and junior grant have precedence of the junior equity and senior grant. But what equities had the appellants, simply on the passage of their charter? What fraud or injustice, would they have suffered by a repeal of the law, or any such modification of it, as the legislature might have seen fit to adopt? None. No rights, either legal or equitable, were conferred on the appellants, but by the requisite acts done in conformity to the act of assembly. Then their equities first arose; and to no more remote period, upon any principle of relation, can they possibly be carried. The appellants seek to apply a new doctrine of “relation,” never heretofore recognized, which needs no prior equity to support it: thus dispensing with that which has always heretofore been of the very essence, the fundamental basis, of the rule. And what injustice, inconvenience, and confusion would result from such an innovation, may readily be imagined, by its application to the case before us, under a probable variation of its circumstances, which would not in any wise change the principle. Suppose the Chesapeake and Ohio Canal Company not to be in existence until ten years. hence and that during that period, under the faith of their charter, the Rail Road Company had completed their entire enterprise to the banks of the Ohio. What, upon this new and extraordinary doctrine of relation, would be their predicament? Why, the Canal Company, then, for the first moment, coming into being, might locate their works upon the identical ground occupied by the rail road, from Parr's Spring Ridge to the waters of the Ohio, and not allow the Rail Road Company one dollar, for the millions expended in the execution of their work. If such be the doctrine of relation, founded on equity, I am at a loss to conceive, what would be termed “relation,” founded on iniquity.

But if “relation” be admitted into the case, to what period are the rights of the Canal Company to be translated ? Is it to 1823, when Virginia passed the law, or to 1824, when Maryland adopted it, or to the date when Congress sanctioned it, or to the time when any of its supplements were passed ? The difficulties and absurdities attending an affirmative answer to either of these questions, unequivocally show, that, to neither of those periods can it be carried : but, that you must go hack to the common sense of the case, and fix the time of their acceptance of their charter, as the origin of their rights. The legal subscription of the requisite amount of stock being such acceptance.

It is contended, also, that this charter making the canal a public highway, forms an exception to the general rule applicable to such subjects; and must be regarded as a dedication to public uses: and therefore, effects the immediate transit of the powers of the State. The answer to this suggestion is the same, that was given to the alleged operation of the principle of abeyance. The doctrine of the dedication to public uses is founded on the same necessity, which must exist to support abeyance. It is only resorted to, where the thing granted was intended to pass immediately from the grantor ; where its remaining in him, was utterly inconsistent with the grant. Is that the ease before us? Was any thing more designed by the legislature, than an eventual grant; a transfer of rights upon the formation of the corporation ? Until that event occurred, nothing passed; neither the operation of the grant, in the fullest extent of its terms, and expressions, nor the intention of the grantors, nor any principle of law, require that it should. But would this discriminating feature, if admitted, be of service to the appellants ? Concede, that so far as the public are concerned, the rights of the State vest in them. Does that exclude the power of future legislation on the subject? Nay, is it not the very circumstance that gives to the legislature full power and control over it ? It is a concession in all the cases of this character, where 'the power of the legislature has been drawn in question, that over a grant affecting public rights and privileges, the right of future legislation is undeniable, and uncontrolled. The constitutional prohibition, as to impairing the obligation of contracts, has no application to such a grant. . It is only to private, not rights in their nature public, that this salutary safeguard was designed as a protection. If then, for these public purposes, the rights of the State passed into immedi- - ate dedication, at the date of the act oí assembly, there being no intervention of private vested rights to prevent it; the legislature might at any time resume its powers, or pass, any law upon the subject, which its discretion might suggest. Until such private rights intervene, this dedication to public purposes, which is but the creature.of the legislative will, exists but at its pleasure. Suppose, by act of. assembly commissioners were appointed, to condemn and : open a designated road, and hold the same for ever after, as ,¡ a highway, for the use of the public. Could not the legislature, by any subsequent law, limit, change, or repeal their powers? It cannot be denied.

I have been insensibly drawn into unnecessary prolixity and detail, in the examination of this part of the case, because it appeared to me from the efforts made upon it by,, both parties, that it was considered the prominent point in , the cause. The other questions, I shall treat with more brevity.

Assuming, that I am right in the views I have thus far taken of this case; the pretensions of the appellant are attempted to be sustained on the ground, that Maryland, Virginia, and the United States, entered into a contract, and were bound to each other, that the Chesapeake and Ohio Canal might be made upon the terms stipulated in its charter ; and that any attempt, therefore, by either of those contracting parties, separately to repeal, change, or modify, any of its provisions, was unconstitutional and void, as impairing the obligation of a contract. If in truth, there be such a breach of faith on the part of Maryland, as is complained of, it might, with some show of reason, be said that it is Virginia only, which has a right to complain. The Chesapeake and Ohio Canal Company having accepted their charter, with a knowledge of its qualification, as made by Maryland, stands not with a good grace before a court of equity, as the voluntary asserter of Virginia's rights: who for ought that appears, acquiesces in those acts, which form the subject of complaint. Nay, she has actually assented to them, by passing the rail road charter. Having accepted the charter in the condition in which they found it, they have no equities, by which they can be subrogated to the rights of Virginia, if she had any. The United States not having complied with the conditions, on which alone Maryland consented to be bound, until after the alleged violation of the contract, there would be but little equity on their part, to which the Canal Company could fall heir.

But where is the evidence, that such a contract was ever made by these sovereign States? It is, say the learned counsel, the necessary inference to be drawn from their acts of legislation. This is not the mode in which independent governments make compacts. Their engagements with each other, are not entered into in the same loose, unauthcntic manner, in which the ordinary transactions of man- ■ kind are conducted, where much rests on parol, and depends on inference and conjecture. But all their contracts are matters of express stipulation, formally drawn up by learned and skilful agents, fully disclosing the character of their agreements; and for the most part, preserved in their public archives, as matters of record. Whether there be a contract between them, is never a question depending on remote inference, or vague implication ; but is ever a subject of express declaration. Where then is the evidence, of the negotiation on which this alleged compact is founded ? It is not even insinuated that it exists any where, unless it appears on the face of their acts of legislation. Does it so appear; let me ask ? Is there a word or syllable in any of those laws, which intimates such an agreement ? Does the preamble recite it ? Do any of the enactments affirm it ? Or is there, in their numerous statutes relating to this canal, a word or sentence, which does not receive its full and natural import’ upon the assumed fact, that there was no such pompaet ? And are not all their enactments in relation to the canal, with their various forms and qualifications, consistent and natural, as, the regular offspring or result of spont.aneous? concurrent legislation, modified by the peculiar circumstances, and combination of interests, in which the parties were situated, independently of all compact on the subject; ? But stamp on their acts the character of contract, and how; stand the legislatures of Virginia and Maryland? Convicted of a wanton and wilful violation of the constitution of the United States, which they had sworn to support They not only, do not ask the assent of the United States to their compact, as it is now called, but expressly declared that Congress shall not assent to their act upon any other, authority, than “as the legislature of the District of Columbia.” And the Congress of the United States, represented as one of the three sovereign parties to this unconstitutional compact, and consequently, alike cognizant of its nature and unconstitutionality, in violation of their duty and their, oaths,” as the legislature for the District of Columbia, sanction and affirm it. Can more conclusive evidence be desired, that there never existed such a contract as is alleged, between the three governments, than the bare statement of the consequences, which would follow such an unnatural presumption ? Could any thing short of the most irrefragable proof of the fact, induce any court of justice, much less this grave and reflecting tribunal, to cast such an imputation, not only on their own legislature, the high and predominating co-ordinate branch of their own government ; but upon the legislature of the Union, and also upon that of one of the most enlightened States in it?

It has heretofore been a maxim, as well of ethics as of law, that presumptions are to be raised in favor of innocency of intention. But in this case, it does appear to me, that we are called on, in favor of the Canal Company, to invert the order of every thing which stands ih the way of the aecomplishment of their designs.

It is urged, that it must be the contract of the sovereign States, because each State legislates for the canal, through its whole extent: as well on subjects within its own limits and jurisdiction, as those in other States through which it passes. But is this conclusion warranted by the charter? Did Maryland intend, in virtue of her legislation, to give title to the Chesapeake and Ohio Canal Company, to lands or other property in Virginia, or vice versa ? Where the necessity? What the object of the States in mutually delegating, or exercising such an anomalous, if not incommunicable power: even upon the supposition, of the cánal charter, being a compact between them ? None can be suggested. The common sense, the legal interpretation of their acts, is, that the legislation of each State should operate to the extent of its limits, and no farther, as regards the rights and powers transferred to the Canal Company. But that each State, as they well might do, (independently of all authority, interchangeably communicated,) did impose restrictions, by way of condition, extending beyond its territorial limits. As for example; that no higher toll should be exacted on any part of the canal, than that specified in the law. With as much propriety, may it be said, that the rail road charter is a compact between the States, through which it must pass; the 4th section, enacting, “that the president and directors of said company shall be, and are hereby invested with all the rights and powers necessary to the construction and repair of a road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined;” the 15th section, authorising the acquisition of title to the site, &e. of the road, by agreement or condemnation, through the entire route; and the 18th section, containing a similar restriction, as to tolls; and providing, that the capital stock of this company “shall be exempt from the imposition of any tax or burden by the States, assenting to this law.” Thus continuing the similitude by showing, that the assent to it, was to be given by other States than Maryland. And Virginia did assent to this law. Yet I believe the idea never entered the imagination of man, that a compact was thus formed between Maryland and Virginia.

So far from the restriction in the canal charter, as to tolls, indicating a contract between the States, because each, in passing the law, thus undertakes to establish a rate of tolls, beyond its proper territorial jurisdiction, it shows the reverse. If the charter was a compact between the States, then the limitation in its 10th section, that the tariff of tolls shall not exceed “an average of two cents per ton per mile;” was all sufficient to prevent its ever exceeding that limit: and bound, and protected all the parties. No further provision on the subject was necessary: because, it being the contract of the three sovereigns, the assent of all was indispensable to any change or modification of its terms. And had it been attempted, under the legislative sanction of either of the Stales, the article of the constitution of the United States, forbidding the State to pass a law impairing the obligation of the contracts, would at once have checked such unconstitutional exercise of power. But not having entered, nor designing to enter into any such compact; and knowing, therefore, that without some further enactment, the company could by consent of any of the States, within their respective limits, raise or alter the tolls, in any way they pleased, they wisely added the following prohibition, to the 14th section; “ and no other toll or tax whatsoever, for the use of the said canal, and the works thereon erected, shall at any time hereafter be imposed, but by consent of the said States, and of the United States.” Construe this a compact between the States, and this sage addition to their law becomes superfluous, unmeaning tautology. Can you, under circumstances like the present, upon any rule of construction ever heretofore adopted, cause it to be so regarded ? The compact in this section, and throughout the charter, is not between the States themselves, but between the Chesapeake and Ohio Canal Company, when it shall spring into life, as the one contracting party, and the three several States or sovereignties, as the other. If a compact between the States themselves had been intended, the application for the assent of Congress, agreeably to the requisition of the constitution of the United States, would have followed as a matter of course. For the necessity of such assent, authorities need not be cited. If such assent be necessary to a cession of part of its territory, by one State to another, as has been adjudicated, and is admitted; it is equally necessary, when two States enter into a contract, by which they bind themselves to each other, to cede to a corporation, highly important streams of navigable water within their limits, and authorise the cutting of canals, &c. in either State: and for that purpose, to exercise the right of eminent domain in both States.

Suppose A, B, and C to bo proprietors of three contiguous farms, through which D is about to construct a turnpike road, or any other improvement, that if completed throughout, would be highly beneficial to all; but, if not so completed, so far from being a benefit, it would be injurious to those through whose lands it might be made; and might be the means of defeating the accomplishment of some similar work, which would otherwise have been ultimately effected. D first applies to A, for permission to make the road, who grants it on condition, that no greater toll than one cent per mile be demanded: and further, that B and C assent to the making of the road through their farms on the same terms. B and 0 on being separately applied to, give such assent. Between A, B and C, no communication on the subject, of any nature or description ever passes. Before the work commenced, A by the consent of JD, or under circumstances in which D’s rights were not violated, withdraws his permission. Can he not lawfully do so ? Has B or C any right to complain, that he has broken any contract, made with them? Unquestionably not. Can the human mind, aided by all the discriminating acumen and subtilty of the profession, draw a distinction in principle, between the casé supposed, and that we are now called on to décide, except that the latter is much the stronger case ? What A, B and C did, Virginia, Maryland, and the United States have done; ánd nothing more. The decision in both cases, must be the same. In confirmation of this idea of a contract between the three sovereigns,Jit may be asked ; if after the complétion of the said canal, Congress had repealed their law, assenting that a lateral canal be made by Maryland through the District of Columbia, could not Maryland have proceeded to make such lateral canal, in despite of such repealing law, on the ground that it was a nullity, being a law impairing the obligation of a contract? Unquestionably it might. But what contract did it impair? Not any contract between Congress and the State of Maryland; for none such existed; but the contract between Congress and the Canal Company. And the State of Maryland having the right to make such lateral canal, by their contract with the Canal Company, and Congress having been bound by their contract with the Canal Company, to permit Maryland to make such lateral canal, in contemplation of a court of equity, to prevent circuity of action, Maryland is subrogated to all the rights of "the Canal Corkpany on this subject, and standing in the stead thereof, may assert the unconstitutionality of the repealing law of Congress. Or may, in such character, to the extent of their injury, prosecute in a Court of Chancery, any other remedy for the breach of such contract, which the Canal Company could there maintain. This is so familiar a principle of a court of equity, that to sustain it by further illustration or authorities, cannot be necessary. But Maryland could be relieved against this repealing law, either in a court of law or equity, on the ground of fraud, (which would avoid it,) independently of any contract between Congress and Maryland. Congress had by contract with the Canal Company, agreed that Maryland should exercise the power. Upon this assent the conditional contract of Maryland with the Canal Company became absolute; the Canal Company, as they were authorised to do, finished the canal. A subsequent revocation of this power by Congress, independently of all idea of their contracting with Maryland, would be a rampant fraud, which no court of law or equity would tolerate. Let us imagine, that in the preceding hypothetical case of A, B, C and D, there was not only no contract between A, B and C, hut they severally refused to hold any intercourse or contract in any shape, with each other: yet, after the road was finished through the farms of A and B, that 0 refused to permit D to progress with the road through his farm, to the great injury of A and B. Can it be doubted, that A and B, independently of contract between them and C, but upon the several contracts by A, B and C, with D, might obtain an injunction against C, to prevent his obstructing D in the completion of the road. It is a proposition that admits not of denial. So if, under the repealing law of Congress, any of their agents, or those who were hound by their legislation, prevented the opening of the lateral canal, in the mode prescribed by the repealed acts of Congress, a similar injunction would issue against them.

In confirmation of the remarks I have made, as to the clear and unambiguous language _used by sovereign States, in contracting with each other, or in consummating a contract by legislation, look to the act of assembly of Maryland, passed at November session, 1785, ch. 1; and, comparing it with the charter of the Chesapeake and Ohio Canal Company, see whether the evidence of compact, on the face of both laws, be in character the same; As to the canal charter, the inference of compact is reached by a forced unnatural construction, not deducible from the objects of the law, or the circumstances under which it passed, nor necessary to gratify one word or expression in it; and involving consequences, which every principle of courtesy, candor, and sound judicial interpretation, prompt us to avoid, by the rejection of such an inference. But turn to the former law, and the compact is so conclusively demonstrated by its title, its preamble, the terms and expressions of its enactments, that nothing is left for inference or conjecture. This is the mode in which sovereign States treat, or form compacts with each other. The title expressly announces “the compact;” the preamble most minutely recites it; and the enacting clause ratifies and confirms it, and declares that, “as soon as the said compact shall be approved, confirmed and ratified, by the general assembly of the commonwealth of Virginia, thereupon, and immediately thereafter, every article, clause, matter and thing, in the said compact contained, shall be obligatory on this State, and the citizens thereof, and shall he forever, faithfully and inviolably observed, and kept by this government and all its citizens, according to the true intent and meaning of the said compact; and the faith and honor of this State is hereby solemnly pledged and engaged to the general assembly of the commonwealth of Virginia, and the government and citizens thereof, that this law shall never be repealed or altered by the legislature of this government, without the consent of the government of Virginia.” If the same inference of compact is drawn from these two acts of assembly, so utterly dissimilar, in that respect, in every feature and provision, the old legal axiom, uet 'sic dé similibus,” should be changed, and it should now be ilet sic de insimilibus.”

The appellants have also insisted, that their charter, upon the assent to be given, in the mode prescribed by the Potomac Company, was a contract between the Potomac Company and the States, of which the charter of the Baltimore and Ohio Rail Road Company was a violation. How many contracts, this charter, so prolific of contracts and litigation, may be alleged to contain, when passing through the ordeal of such professional ingenuity as has been applied to it, on the present trial, 1 am at a loss to conjecture. But, it appears to me, that the same arguments which have been urged against a compact between the States, for the most part, apply with equal force, against any such implication with the Potomac Company. The assent of that company, in reason and justice, can be regarded in no other light, than as an offer of a bargain to the Chesapeake and Ohio Canal Company, which, like all similar propositions, until accepted, was revocable, at the pleasure of the Potomac Company. To construe it otherwise, would be an act of unexampled, cruel injustice to that company. The Chesapeake and Ohio Canal Company could not be formed, until the Potomac Company had given their assent; they might not have been organized for a hundred years afterwards. Yet during all this period, the Potomac Company were to go on, expending their money in removing obstructions in the river, and improving its navigation by locks and canals; and, when, pérhaps by dint of these expenditures to facilitate transportation, they are about to be re-imbursed, without the power of extricating themselves from their dilemma, they are to be divested of all the fruits of such their labors and disbursements, and for which no reimbursement or indemnity in any shape, is allowed. And what equivalent are they to receive for this ? A mere possibility; remote and improbable, as to any beneficial result; the chance, that after all other stockholders receive ten per cent., there may ho something left for them. Some possible dividend may be made on their capital stock, but nothing on such their disbursements. It may be said, that they ought not (their assent being given) to have continued such expenditures. But what was their alternative ? Why, to forfeit their charter, and all that had theretofore been expended. Draw from such their assent, the inference of contract, and they cannot escape the consequences I have mentioned. Should a court of equity, as we now are, be astute and technical, in seeking out a construction fraught with such injustice?

It has also been insisted, that, a subscription to the stock of the Chesapeake and Ohio Canal Company having been commenced, no matter to what amount such subscribers had acquired rights, which could not be impaired by any act of the legislature of Maryland, affecting the terms and conditions on which such subscription was made. This is true, so far as regards the coercion of the subscribers, to comply with the obligations assumed by subscription, but no further. There is no contract, under the charter of that company, between the State and the subscribers, qua, individual subscribers. The only contract that could arise, was between the State and the Chesapeake and Ohio Canal Company, when brought into being by the subscription of the requisite amount of stock. Before that took place, every thing was in fieri. Then, and not till then, are the legislative powers of the State suspended by the constitutional interdiction; then, and not before, does it impliedly contract, not to revoke, or impair the rights and privileges it has granted. To this extent, and no further, have the Supreme Court gone in the Dartmouth College, and other cases on the subject. The acts, done at the time of subscribing for stock, are, of themselves, nothing more than a compliance with the mode, by which the assent, to become members of the corporation, is given; and never were designed to create a contract between the State and the individual subscribers. With as much propriety, may it be .said, that, if any article of property were offered at public auction, and by the terms of sale, no bid were to be received, unless he who made it, in assurance of his punctuality, should deposit with the auctioneer, one dollar,—that upon such bid being made, and payment of the dollar, the owner could not decline proceeding with the sale, or offering it upon new, or different conditions.

It has been said, that “the charter of the Chesapeake and Ohio Canal Company, was granted upon individual application; that individuals had spent their time and money, in procuring the information, upon which the legislature acted, in granting it: and that this expenditure was a consideration, which was sufficient to make the contract binding on the State, from the date of the charter; that these individuals were, in fact, the parties interested, and not the persons who subsequently subscribed, and became corporators under the law.” This argument is, I believe, at least entitled to the merit of novelty; but, it passes no encomium upon the strength of a cause, which, in a court of last resort, finds it necessary to invoke it to its aid. If the State be thus bound to these persons, then, have they, under the canal charter, rights above all others: and consequently, a prior right of subscription? Yet no such priority exists. Or if so entitled, the contract, I presume, is mutually obligatory, and they are bound to become members of the corporation. Can they be compelled to become so ? And how ? Is it possible, that this court, on grounds like these, would venture to declare an act of the general assembly of Maryland, unconstitutional?

But it has been alleged, that although the appellants should fail on all the other grounds, on which they have attempted to sustain their asserted priorities ; yet, that they are clearly sustainable, under the powers long since granted to the Potomac Company, and to which they have been substituted. Before I enter on the examination of this question, let it be premised, that what I say on this subject, relates not to the rights of the Potomac Company, or their successors; to the bed of the river, or to any canals or works which they have constructed. The location of the rail road, as I understand it, interfering with no such rights. The preliminary inquiry arises, what was the character and design of the Potomac Company's charter? What were the powers granted? And for what purpose given? On these heads a glance at the act of assembly would satisfy any reasonable mind: but to obtain demonstration on these subjects, all that is necessary, is to compare it with that of the charter of the Chesapeake and Ohio Canal Company, The preamble to the charter of the Potomac Company gives us the design of its authors, in the following words: “Whereas the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility: And whereas it may be necessary to cut canals, and erect locks and other works on both sides of the river,” &c. That a continuous canal between the termini of this navigation, was not designed by the legislature: that a delegation of the powers necessary to its construction, was never intended, is to my mind a proposition so manifest, that I can hardly prevail on myself jto believe, that arguments are necessary to throw light, as to this subject, on the mind of the most superficial interpreter of the law. The preamble declares, uit may be necessary to cut canals." For what? “The extension of the navigar tion of the Potomac river.” And in conformity herewith, the 4th section of the law transfers to the company the authority “to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary for opening, improving, and extending the navigation of the said river." The 10th section enacts, that the said river, and the works to be erected thereon, in virtue of this act, when ,completed, shall forever thereafter be esteemed and taken as a public highway, on payment of the tolls imposed by this act. The 17th section declares, “that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, and shall be paid on condition only, that the said Polo-mac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, at 'which a road shall set off to the Cheat river, agreeably to the determination of the general assemblies of Virginia and Maryland, to and through the place which may he fixed on, below the mouth of the south branch, for the receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls hereafter allowed to be demanded and received at or near Payne’s falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the said river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection, near the mouth of the south branch, to and through Payne’s falls aforesaid; that the tolls hereinafter allowed to be demanded and received, at the Great Falls are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne’s falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at or near the Great Falls, make a cut or canal, twenty-five feet wide, and four deep, with sufficient locks, if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make at or near the .Little Falls, such canal and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid, into tide water, or render the said river navigable in the natural course.” And the 18th section provides,, “that in case the said company shall not begin the said work, within one year after the company shall be formed, or if the navigation shall not be made and improved between he Great Falls and Fori Cumberland, in the manner herein before mentioned, within three years after the said company shall be formed, that then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the • navigation, through and from the Great Falls to tide water -as aforesaid, within, ten years after the said company shall be formed, then shall all the interest of said company, and all preference in their favor, as to the navigation and tolls at, through, and from the Great Falls to tide water, be forever forfeited.” . Adverting to the language of this charter, that the thing to be made navigable and a public highway forever, was the river of one foot depth: to the time within which the work was to be completed, viz: in three years, from the Great Falls to Cumberland; and ten years, from the Great Falls to tide water; (thus giving where one or more canals were to be cut, more than thrice the time that was allowed to complete the residue of the work, where no can-nailing of any moment was required or anticipated, but where the distance was ten times as great, and the labor and expence necessary to the completion of a continuous canal, tenfold greater,) and adverting to the power given to cut canals, which was of such only, as were “necessary” to render the “river” navigable; to the original subscription $220,000, (by which it was contemplated to accomplish the object, for which the company was organized,) an amount insufficient to construct the canal for three miles, at many of the difficult passes between the Great Falls and Cumberland. Can it be believed that the design of the legislature was, that a continuous canal should be made throughout the whole course of the navigation to be improved ? Or that they gave sueh a power, when they authorised the cutting of “such canals” as were “necessary” to make the “Potomac river” a navigable public highway. When such power is given, the language of the legislature discloses their intention. As in the preamble to the Chesapeake and Ohio Canal Company's charter, the first words of which are, ^whereas a navigable canal, from the tide water of thé river Potomac, in the District of Columbia, to the mouth of Savage creek, on the north branch of said river,” &c. “will be a work of great profit and advantage,” &e. Not a word throughout the law, about the extension or improvement of the navigation of the “river.” The cutting the continuous canal, and erecting its appertenant works, were objects for which the legislature designed to provide: and for their accomplishment, ample powers were given.

By the 13th section of the charier of the Chesapeake and Ohio Canal Company, that company are invested with all the property, rights and privileges of the Potomac Company, “in the same manner and to the same effect as the said Potomac Company now hold, possess, and occupy the same by law.” In no other way, for no other “effect,” or purpose, can the Canal Company exercise the “rights and privileges” of the Potomac Company, but for the effects and purposes, contemplated by the charter of the Potomac Company. The same interests and powers, and nothing more, accrue to the Canal Company, exerting the “rights and privileges of the Potomac Company” in cutting an occasional canal, or making any improvement in the navigation of the river, as would, before the charter of the Canal Company, have accrued to the Potomac Company, performing the same work. Although the property of the Potomac Company passes to the Canal Company, to he used as they see fit, taking care that their rights are not forfeited under the provisions of the Potomac charter; yet they have no right under that charter to cut a canal, not necessary to improve the navigation of the river as there provided for, but with a view of using it as the canal authorised by the charter of the Chesapeake and Ohio Canal Company. Such a fraudulent device to over-reach the prior rights of the appellees; such deceitful trickery, would not for a moment be tolerated by a court of equity. If, after completion of the Chesapeake and Ohio Canal, or pending the execution of the work, the Canal Company keeping the “river Potomac” navigable, as required by the Potomac charter, were to collect the tolls authorised thereby ; their right to do ' so could not be the subject of a doubt. If, to effectuate such navigability, it should be necessary to cut a canal at any difficult pass of the river, (putting out of view, the time limited for the completion of their work,) their power to do so could not be brought in question. But what tolls could be demanded for the use of such a canal ? None other than those specified in the Potomac charter. Was it the in-' tention of the Chesapeake and Ohio Canal Company to collect, for the use of that part of the canal they were locating, in collision with the location of the Baltimore- and Ohio-Rail Road Company, no other tolls than those sanctioned by the Potomac charter? Was it their design, merely to cut a canal, necessary to make navigable the “river,” in the mode contemplated by the canal charter ? If so, then, it may, in fairness be said, they were acting under the powers, possessed by the Potomac Company, But would the candor of their counsel permit them to throw out such an insinuation? Would the Canal Company for a moment, entertain the idea of making the canal from the Point of Rocks to Cumberland, (the battle ground) on such a condition? Nobody can believe it. Suppose' the Canal Company, to draw the whole trade of the river into the canal, (after its completion) or for any other motive, were to suffer obstructions to accumulate in the river,' until it ceased to be navigable, as provided for in the Poto-' mac charter, and that charter, in consequence thereof, by judgment of a court of law, were forfeited: would the Canal Company, thereby, lose all title to that part of the canal, between the Point of Rocks and Cumberland. If it-were made under the powers given' by that charter, the consequence is inevitable; it must be conceded. Do the Canal Company admit it? They would hesitate long, before they did so. The undeniable fact is, that the Canal' Company were locating that grand canal, provided for by the Chesapeake and Ohio Canal charter, and not any canal, contemplated by the charter of the Potomac Company; ■ How then can they be regarded as acting, under the powers delegated by the Potomac Company’s charter? In my humble apprehension, it is impossible to sustain them, under this, their last expedient to defeat the well established rights of the Baltimore and Ohio Rail Road Company. To do so, would be to strain, beyond all reason, the letter of the statute, for the purpose of violating its spirit and obvious import: to give countenance, nay, encouragement, to fraudulent contrivances and ingenious deceits, which they have never yet received in any tribunal of equity.

The inquiry on this point, the answer to which, settles this question, is most simple. Were the acts of the Canal Company, against which the injunction issued in this case, done in execution of the enterprise contemplated by the Potomac charter ? or in execution of the great work, provided for by the charter of the Chesapeake and Ohio Canal Company? If the former, then the Potomac Company being first legally constituted, it may be contended, that they are entitled to priority in the selection and appropriation of the route; and the injunction granted to the Rail Road Company should be dissolved. But, on the other hand, if the acts of the Chesapeake and Ohio Canal Company, complained of, were done, not in completion of the works provided for by the charter of the Potomac Canal, but in execution of that stupendous canal, alone contemplated, and authorised by the charter of the Chesapeake and Ohio Canal Company, then the Rail Road Company, being the senior corporation, and having first made their location, are clearly entitled to all the priorities they claim; and the injunction of the Chancellor should be made perpetual.

But, suppose the Potomac Company had, as insisted, originally, under their charter, a power either to have made a continuous canal, or to have improved the navigation of the river by occasional canals, or wholly by sluice navigation. Having once made their selection of the mode, and exercised, as they have done, the right of eminent domain, in cutting occasional canals, that power cannot be again exerted, in the making of a continuous canal. The desired improvement being made in one mode, this transcendent power cannot afterwards be exerted in affecting it in another; otherwise, a continuous, and an occasional canal, might both be cut through the lands of the same individual : an invasion of private rights, a wanton oppression, which the public exigencies at that time, did not require, and which, the framers of the Potomac charter never designed to give to that company.

Feeling entire confidence in this view of the subject, that no such power was derived from the Potomac Company, as that which brought the Chesapeake and Ohio Canal and Baltimore and Ohio Rail Road Companies in collision, I deem it unnecessary to examine the much vexed question, whether, if the Potomac Company originally possessed such a power, it could be exerted after the time limited by the 18th section of their charter, for the completion of the improvement of the navigation of the river.

On the part of the appellants, it has been further urged, that the acts of the general assembly of Maryland, in relation to the route of the rail road, conferring a general power of location, uncontrolled by localities, are to be so restricted, in their interpretation, as to exclude the right of interfering with the site of the canal; which, by its charter, is specifically located, on the eastern bank of the Potomac. Rut this position is untenable, because it is wholly unfounded, in fact. It is not true, that in the Chesapeake and Ohio. Canal charter, there is any specific location given to the canal, confining it to the eastern or western bank of the Potomac, or to either of the banks of that river. The 19th section of the law, which alone defines the route and termini of the canal, declares, “that the first, or eastern section, shall begin at the District of Columbia, on tide water, and terminate at, or near the bank of Savage river or creek, which empties into the north branch of the Potomac, at the base of the Alleghany mountain.” Can human ingenuity torture this into any more definite location of this section of the canal, (which only, is involved in the present controversy,) than as fixing its termini? Can it be possible, judicially to determine, that the true import of these expressions, is, that the canal shall commence at tide water, in the District of Columbia, and thence follow the ravine of the Potomac to the bank of Savage creek? Is there any thing in the law, or the reason of the law, that could thus fetter its construction? Suppose it had been ascertained, by actual surveys and calculations, made by experienced engineers, aided by the superior and extended lights of science of the present day, as applied to the art of canalling; that, after receiving into the canal the waters of the Potomac, at the Great Falls, instead of following the sinuosities of that river, by means of its tributaries, and through the interior of the country, on its eastern shore, the canal could be conducted to the bank of Savage river, by one-half the distance—at one-third of the expense of labor and money—and in a way to give transportation to three times the quantity of produce, that it would otherwise have borne; could the power of the company, so to construct it, be the subject of a momentary doubt ? Admit this power, as you must do, and all this notion of a specific location of the canal, by its charter, of which we have heard so much, vanishes in a moment. For, if the canal be located by its charter, the company possesses no discretion to depart from it. Nor does the preamble, as was supposed by the argument, sustain, in the slightest degree, this doctrine of specific location. Every letter of it is complied with, in exercising the discretion used in the suppositive case, 1 have suggested.

But it is alleged, that this specific location of the canal by its charter, is demonstrated, by reference to that mass of surveys, reports, dissertations, resolutions, &c. with which the record has been loaded. Or, in other words, that we are to collect the meaning of the legislature, not from the terms used by them, which are explicit, unambiguous, and full in a pre-eminent degree; but by imputing to them a knowledge of facts, of which there is no evidence, (nor indeed could there be,) that they ever possessed, or if they did, upon what part of it they acted; we are to infer they meant the very reverse of what they have said. This would be stretching the power of judicial legislation, rather farther than the most zealous admirers of the maxim, uest boni judicis ampliare jurisdictionem,” has ever yet extended it. It would be enacting, not expounding the law. Conceding, however, that we possess the power to do so; and, that upon these voluminous documents, we are now about to declare, the legislature to have done, what, according to our opinion, they ought to have done ; and what is that? Why, to give to the Canal Company that discretion which they ought to possess, of locating the canal where the lights of improved science, expendiency, the great interests of the community, and the successful accomplishment of the enterprize, would dictate: and not tie them down to a location recommended by resolutions passed by conventions, less interested and enlightened, perhaps, than themselves: or recommended by surveys made ten, twenty, or fifty years before. This is the course, pursued by the legislature in this instance; and according to my view of it, is the only action on the subject, which an independent, and enlightened legislative body could have adopted. Indeed, from these documents, no certain, and specific location of the canal could well have been made, as scarcely any two .of them agree in that respect. Some confining the canal, on one side of the river Potomac; some on another; some crossing the river often; some seldom; and perhaps some in one place, and some in another. Had a definite location been given to the canal, it would have been of a piece, with the practice so generally complained of, in locating turnpikes, and great public highways, with calls for all the little towns or villages, in the vicinity of which, they might probably pass. Had the legislature intended to make a peremptory location of the canal, they would have used apt words for that purpose; as they did, in providing for the second or western section, (in the clause immediately following that before recited;) which say they, “shall commence at the «aid termination, and extending along the valley of Savage creek, so far as the same,” &c. In not doing so as to the first, and doing so as to second, they distinctly announce the discrimination they designed to make, in the locations of the two sections. The utter silence of the law, as to any designated site, of the first section of the canal; its omission to select or adopt any of the numerous surveys, that had been made; is conclusive of the fact, that the Canal Company were left, as they should have been, to an unlimited freedom of choice. In which, they might be influenced by every circumstance, tending to control their choice : whether it related to the obstructions to be removed; the time and expense, necessary to be consumed in doing so; the length of the route; the commercial or transporting facilities to be afforded; their pecuniary ability to accomplish the objeet, or any like consideration.

.But it is insisted, that, although, this court should be of opinion, there is by the charter of the Canal Company, no precise location of the canal, confining it to the margin of the river Potomac, yet that it is specifically located in the territory, watered by the Potomac, and attaches upon all the lands within such territory, and so continues, until the actual location of the canal. To recognize the principle of abeyance, as asserted, would be mercy to the landholders of that immense section of country; when we advert to their condition under the notion of this immense canal: whose location occupies the space for a sea, instead of a canal. The effect of abeyance of the power of eminent domain, would be to prevent the laying out of public highways, or the condemnation of land, for any improvement whatever: in the individual improvement and enjoyment of their lands, the owners were left unrestricted as heretofore. But, the effect of this sort of legislative location of a canal, which is to spread over a section of country of perhaps two hundred miles in length, and more than one hundred in breadth, to the exclusion of all acquirements of intermediate rights, is to me a proposition so new and incomprehensible in its character; so appalling in its consequences, that I can with difficulty persuade myself, that it was “put forth in sober earnest.” If it be sustainable, not only is the State bound by it, but no landholder within the sequestered district, could lawfully do any act by which this franchise of the Canal Company could be changed or impaired. To the whole extent of country then, watered by the Potomac and its tributaries, containing two or three hundred thousand square miles, this right of the Canal Company so attaches, that after the date of their charter, no proprietor of land can build a dwelling house, or mill, or erect any building or improvement upon his property, without incurring the risk of having his buildings and improvements razed to the ground, without any compensation or indemnity, other than what he would have been entitled to, had his property remained in the condition in which it was at the time the act of assembly passed. And where is he to look for indemnity for this suspension of his proprietary rights ? The law does not provide it. The contemplated corporation might not have been formed for a hundred years, after the date of its charter, and although during all that time, his hands are tied, he is deprived of the beneficial use and enjoyment of his property; yet for this sacrifice no remuneration is allowed him. But even after the organization of the corporation, and the accomplishment of the object for which they were incorporated; who are compensated ? All whose rights have been ruinously suspended ? No. Not one in ten thousand. Perhaps the property of not one, in a still greater number, would be touched by the canal or its appendages; and for those only is any indemnity provided.

Have the legislature of Maryland a power to pass such a law, had they so designed ? Certainly not. They can divest no man, agreeably to our constitutional safeguards, of the beneficial enjoyment of his property; but upon making adequate compensation therefor.

If, however, it were shown that the canal, by its charter was specifically located, or in any way located, the rail road charter with the acts done thereunder, is a repeal of it, so far as their locations interfere, above the mouth of the Monocacy; the rights of the Rail Road Company having been conferred on them by the legislature of Maryland, whilst their powers over the canal charter, were unrestricted by any constitutional prohibition. The Canal Company, not being then in existence, could be invested with no rights, nor be a party to any contract, which the legislature of Maryland could impair, or violate. The selection of the route for the rail road, had been adopted before the Canal Company had been ushered into being.

Nor is it true, as has been assumed in the argument for the appellants, that there is no power given to the Baltimore and Ohio Rail Road Company, so to locate their road, as to interfere with the location, now claimed by the Canal Company. The charter of the Rail Road Company, passed at December session, 1826, gives to the company the power of locating the road, in terms as unlimited as could be devised. They are “invested with all the rights and powers necessary to the construction and repair of a rail road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined: and they, their agents, and those with whom they may contract for making any part of the same, or their agents may enter upon, use, and excavate any land, which may be wanted for the site of said road.” If a power of location without restriction or exception of place, were designed to be given ; expressions more comprehensive for that purpose, could not have been selected. But it is not alone upon these broad and general expressions, that the rights of the Rail Road Company rests. By the 2d section of the act of 1826, the State of Maryland reserved the privilege of taking stock in the Rail Road Company, to the amount of 10,000 shares. By the 3d section of the act of 1827, passed the 3d March, 1828, the general assembly direct their treasurer to subscribe in their behalf, for 5000 shares of this reserved rail road stock, on condition, that the president and directors of the jRail Road Company “ shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland in Alleghany; and that it shall go into Frederick, Washington and Alleghany counties.” To this condition, the president, directors and company of the rail road, assent: the stock is accordingly subscribed for, the money of the State received, and the rail road located accordingly. Yet, it is said under these circumstances, that the location of the rail road, “to go to, or strike” the Potor mac in the manner aforesaid, was a power not designed to be given to the Rail Road Company. It is impossible to go to, or strike the river, without interfering with the route claimed by the Canal Company. Having reached the river, the continuing the rail road up the same, is the natural, practically speaking, the necessary consequence, in order to comply with the requisition of the act of assembly, that the rail road should pass through Frederick, Washington, and Alleghany counties. If there could be any doubt, as to the operation of the act of 1826, when construed alone; it appears to me, that the legislative interpretation thereof, by the act of 1827, when no conflicting rights were in esse, to be affected by it, must forever remove such doubt. The act of Í827, acknowledges the power in question, to be in the Rail Road Company, by the act of 1826. These acts of the same legislature, in pari materia, are “to be construed together as one system.” In this view of the subject, can there be a question as to their construction on this point? But let it be conceded for the moment, that there were no words in the act of 1826, by which this power could be transferred. I hold it a matter, too clear for argument of illustration, that this power is fully delegated by the act of 1827.' At the time of its;passage, the legislature were fp,lly authorised to have granted this power. They agree to pay $500,000, on condition of its exercise by the Rail Road Company. Is not the inference irresistible, the implication of necessity, that they authorised the Rail Road Company to exert it ? To give to this act of assembly any other construction, would be to convict the legislature of Maryland, of an act of absurdity, prodigality and folly, which is without a parallel in the annals of rational men; they intended this, and could have intended nothing else. As well might it be said that if A pay to B $500, on condition that he would cut down, and haul off all the timber from fifty acres of A’s wood-land, that A gave to B no powers under such contract, but that he could sue B as a tresspasser or wrong doer, and recover of him damages for every tree he should cut or haul off.

Having by the views already expressed, disposed of the material points in this case, so far as is necessary, to the final decision thereof, I forbear to express any opinion on the point so elaborately, 1 was about to say unanswerably, argued by the counsel for the appellees, that conceding to the Canal Company, seniority of corporate existence, that their charter per se gave to them no priority of right, in any particular route for their canal. That such superiority of right, rested entirely on priority of selection, and that therefore the rights of the Rail Road Company were paramount. I am therefore of opinion that the decree of the Chancellor, making the injunction perpetual, ought to be affirmed.

DECREE REVERSED AND BIDE DISMISSED.

Case Details

Case Name: Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road

Court Name: Court of Appeals of Maryland

Date Published: Jun 15, 1832

Citation: 4 G. & J. 1

Court Abbreviation: Md.