Page:The Green Bag (1889–1914), Volume 20.pdf/388

 THE CHARLES RIVER BRIDGE CASE fast and would be wholly lost in about 20-30 years. At the time when Warren Bridge was thought of in 1827, there was but one share held by an original subscriber." ' The legislative contest, which was to last five years, began with the petition of John Skinner and other citizens of Charlestown for a charter to build a bridge which should be "toll free for foot passengers,"2 intro duced in the Senate May 30, 1823. Many remonstrances were filed against this petition by wharf owners in Cambridgeport, Charlestown, and Boston, urging the obstruction to navigation which would be caused by the new bridge. The Charles River Bridge Proprietors objected, denying any public necessity for another bridge, and setting forth the injury to their own property, then valued by them at $280,000: "by far the greater part of which is hplden by persons who have purchased the stock within the. last ten or fifteen years — by widows, by orphans, by literary and charitable institu tions. The erection of another bridge from Charlestown to Boston would annihilate at once two-thirds of this property." In February, 1824, the Legislature gave the petitioners leave to bring in a bill, and they were ordered to give notice to parties interested. The Charles River Bridge, there upon by formal vote of February 25, 1825, offered to make any addition or alteration in its present structure that the Legislature might desire; and the Legislature postponed action on the Skinner petition. In June, 1825, a new petition was filed, offering to build either a free bridge to be maintained by the counties of Suffolk and Middlesex, or a toll bridge to become free after its cost with interest should be reim bursed. In January, 1826, the petition came up again; and there were many memorials in its favor from inhabitants of towns in Essex 1 See Harvard College Archives, Quincy Papers, un published letter of Peter C. Brooks, September, 1840. ' See manuscript Legislative Records of Massachu setts.

and Middlesex counties, objecting to the pay ment of the high tolls demanded by the Charles River Bridge, and urging their right to a free bridge. The joint legislative committee headed by the great lawyer, Samuel Hoar, a senator from Middlesex, made an adverse report on the bill; and it was referred to the next Legislature. This report was of interest as containing in concise form the grounds on which the case was later argued before the courts. It found that there was no "public necessity" for the new bridge, that the question of toll had no bearing on the deter mination of the general public .necessity, and that the Charles River Bridge Charter was "a contract," which under the doctrine of Fletcher v. Peck,1 the Legislature could not impair, and that a new bridge would be a nuisance as against the rights of the old bridge.* In June, 1826, a new petition was filed, in which the claim was advanced that Charles River Bridge had obtained its extension of its charter in 1792 by fraudulent representa tions as to its profits. This petition con tained a long and plausible legal argument, evidently drafted by eminent counsel. 1 Fletcher v. Perk (6 Cranch 87) had been decided by the United States Supreme Court in 1810, having been argued by Luther Martin of Maryland, against Robert G. Harper of Maryland and Joseph Story of Massachusetts, the latter prevailing. As is well known this case was the precursor of the decision in the Dartmouth College Case nine years later, in 1819 (4 Wheaton) in which Story sat as one of the Justices of the Court. titled "Reasons, Principally of a Public Nature, against a New Bridge from Charlestown to Boston," it is said: "The present bridge was not granted as a favour to the stockholders, but because the legislature perceived that the whole community were to be benefitted, and the terms on which the proprietors were willing to under take this novel and hazardous enterprise gave an advan tageous bargain to the public. The object in view in obtaining this projected bridge is merely local and personal, so entirely a project to get rid of paying foot toll at the present bridge, that scarcely a man in Charlestown would be in favour of a new bridge if the charter contained a provision for taking a foot toll."
 * In an elaborate pamphlet published in 1825,. en