THE CHARLES RIVER BRIDGE CASE out indemnifying the proprietors of the old bridge, the opinion of the injustice would have been universal." Judge Morton (a robust Democrat of the radical type), took the position that to hold the statute unconstitutional would retard all progress, that such a construction as the plaintiffs claimed was not to be placed on a charter for a great public work, and that the grant was to be construed rigidly in favor of the State and against the grantee. The extent to which the economic and social conditions of the day entered into the deci sion is well illustrated by his remarks: "Scarcely a turnpike has been estab lished in the state which has not diverted more or less travel from the former ones. If, therefore, the different private charters in the Commonwealth, granted for the pur pose of improving the state of the country and bettering the condition of the people, are to receive the extensive construction contended for, they amount to an entire prohibition of all further internal improve ment during their continuance. No im proved road, no new bridge, no canal, no railroad, can be constitutionally established. For I think, in the present state of our country, no such improved channel of com munication can be opened without dimin ishing the profits of some old corpora tion." Meanwhile, the pendency of this case had already had a serious effect in retarding the development of railroads in Massachusetts. South Carolina, Maryland, New Jersey and New York had already chartered and operated railroads; but Massachusetts finan ciers had hesitated to embark in such doubt ful enterprises, fearing future action of the Legislature which might destroy the value of their charters, similar to that which had wrecked the Charles River Bridge. Finally, in 1830, however, a charter was obtained for the Boston and Lowell Railroad, though with the protection of the express grant of an exclu sive right for thirty years. Other charters were granted in the same year without such right; but the difficulties of obtaining stock
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subscriptions were so great that no railroad was opened for operation until 1834. And even as late as 1835, the effect of the Bridge case was felt when attempts were made to finance the Western Railroad (chartered in March, 1833), which was to connect Boston with Albany. Thus, Josiah Quincy, Jr., its treasurer, noted in his diary, November 25, 1835-' "Went round with Mr. Edmund Dwight to obtain subscribers for the Western Rail road and they all with one accord began to make excuses. Some think the city is large enough and do not want to increase it. Some have no faith in legislative grants of charters since the ' fate of Charlestown Bridge. ... It is the most unpleasant business I ever engaged in." An appeal was taken at an eajly moment from the decision of the Massachusetts Court; and the case was entered in the United States Supreme Court March 19, 1830, to be argued in the January term of 1831. At this point, the great case becomes intimately and interestingly connected with the history of the Harvard Law School, —• then an institution only fourteen years old. Judge Joseph Story of the United States Supreme Court had been appointed Dane Professor in the School in 1829, delivering his lectures in the fall and spring, and sitting in the Court in Washington from January to March. Two weeks before the argument of the case of Charles River Bridge v. Warren Bridge, on February 24, 1831, Story wrote to his colleague Professor Ashmun, then Royall Professor in the Law School.: "We are not yet at the Charlestown Bridge case though it has been staring us in the face for a week past. I think it will be reached next week and then comes the tug of war. We have already a deputation from Charlestown to take care of the court and report progress, and the address of Mr. (Marcus) Morton's constituents has taken some pains to prevent our falling into great errors without all proper admonitions. I want no better gauge of the man than that as a judge he is willing to be the
