Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road

Archer, J.,

dissented, and delivered the following opinion:

*165A 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.

*166An 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 *167lo 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.

*168Both 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, *169“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 *170having 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 extend*171ing 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 *172produce 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 *173river 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, *174following 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 *175in 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.

*176If 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 *177admitted 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, *178plants 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 *179this 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.”

*180It 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 *181by 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 *182body; 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.

*183The 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, con*184stitutes 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 *185thus 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.

*186Relation, 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 le*187gal 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 *188condemned, 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. Ad*189mitting 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 *190be 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 *191effects 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. *192Would 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 *193the 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 *194where, 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 *195abeyance, 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 *196consequently, 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 *197Shore, 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 ante*198rior 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 *199some 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 sus*200ceptible 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,. *201original 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 *202the 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 pur*203sued 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 wil*204lingness 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 *205of 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 *206of 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 *207the 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 gov*208erned 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 *209all 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, *210as 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 *211unequivocal 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.

*2124. 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 *213subject. 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 *214law, 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 *215bank 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 *216still 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 *217take 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 *218never 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.

*219Again, 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 *220Company, 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.

*221It 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 *222reference 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 *223had 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 *224making 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 char*225ter. 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.