■ 
 
LETTER 
 
 TO A LAWYER FROM A FARMER, 
 
 THE RIGHT OF PRIVATE CORPORATIONS TO TAKE 
 PEOPLE'S LAJVD AGAINST THEIR WILL , 
 WITHOUT PAYING FOR IT. 
 
 PORTSMOUTH : 
 
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 Sir: 
 
 In the winter of January: 1841 : the rabble of this district were said 
 by some to be stirred up by certain factious, interloping vagabonds, to 
 find fault with, and even dare to ask the courts of New-Hampshire to 
 take cognizance of some proceedings of a railway corporation. It was 
 argued, if I be not mistaken, by the railway in substance: “ That the 
 instant their act of incorporation receives the assent of the governor, 
 they are justified under it in taking possession by force of any body’s 
 lands or whatever else: leaving their owner to get paid, for being unexpec- 
 tedly kicked out of his own door, after wading through some process or 
 other which, if he can go up to Concord and find somebody that ought 
 to be there at home, the same can tell him what it is if he know himself : 
 that is, if the corporation do not get its exchequer emptied by somebody 
 else before it come to his turn :” The railway held further: “That it 
 was not material by any means that the act of incorporation should be 
 absolutely enacted already : as kicking a man out of doors, blowing up 
 his house and running locomotives where it stood, would be construc- 
 tive notice of a prior conveyance : and be held by a court of equity to 
 be violent presumption of notice to him that the General Court ought to 
 register an act for them to do it by, some future day : which was just as 
 good as a private act of the General Court specially pleaded (Do not 
 throw the letter down here, my learned friend, because you think I am 
 trying to be ironical! wait and hear the opinions of our superior court!)”: 
 The vagabonds contended on the other side : “ That the right of the 
 General Court itself to take one man’s estate and give it to another with- 
 out paying him for it they had made search for and could not find it ; 
 they wanted to know where it was: that as far as they could make out, 
 the General Court could not warn a man off his own ground without 
 saying they would; and if they meant to pay for it, it could give them 
 very little trouble to say so : they talked something among themselves 
 about their taking off estates by private acts in such hot afternoons in 
 haytime, and vesting them in other people without letting them ever 
 know they were going to: they said they had heard something read out 
 of a book about a Trial by Jury : The doctrine that a corporation exists 
 before it is chartered, they wholly protested against ; and said was as 
 new in New-Hampshire as in Westminster Hall.” The High Court of 
 Chancery held the railway’s doctrine was right and the other’s wrong. 
 
 The question I wish you yourself to determine for me, my learned 
 friend, so that I could understand it, is : “ whether, by its acts of incor- 
 poration, such as they were, this corporation had a right to take land : 
 et cetera : against its owner’s will, without paying for it some damages : 
 whether these damages could be ascertained by any way but a Trial by 
 Jury: and this carried on in the way clearly set forth in the act? 
 
 p i I 
 
4 
 
 Whether with an ending-place fixed by law, it had a right to do it, 
 against the owner’s will, in a direction to any other, and professing an 
 intention not to run their railway to the one fixed by law ? whether if 
 they had no such right, the owner had a right to ask a court of equity to 
 stop them ? That is ; whether the estate he had in his land before, and 
 some injury he was going to sustain, being both let pass undisputed in 
 the argument, our courts of equity had power to refuse an injunction? 
 U the General Court can grant such a right of way for thirty years ; it 
 can for thirty thousand ; thirty thousand feet deep: for all practical pur- 
 poses, it is a conveyance of the man’s whole estate to the railway: which 
 should surely be taxed in all the towns and counties it runs through ; or 
 they, the last, are jockeyed by the General Court. 
 
 What has led me to write this letter is that a friend showed me a few 
 days ago (I saw it a year ago or more, but suppose 1 did not read it 
 through,) what he said was a copy of the deliberate opinion of our whole 
 court of equity on this subject: I at first took it, of course, fora forgery 
 got up to burlesque it; but. he assured me it was genuine: a smile of 
 sorrow for Carthage, of contempt fin* such ignorance in a whole court 
 (it ends with saying : “In this result the several members of the court 
 concur”) succeeded the laughter: and to both, I am willing to own, one 
 tear of the deepest pity. 
 
 Our High Court of Chancery asks itself: “what constitutes compen- 
 sation ?” and answers itself thus : “Must it in all cases consist of actual 
 previous payment in some general tender established by law, or may it 
 mean such general provision as in the opinion of the legislature may en- 
 sure in all cases a just and entire compensation ? If the legislature have 
 discretion of this kind as to the means of compensation, the present act 
 furnishes a sufficiept justification for the corporation, the same authority 
 which gives the power to take land prescribes a means of compensation. 
 It is subject to the delay attendant on the action of a committee, and of 
 a Trial by Jury, and also to the contingency of non-payment: but if pay- 
 ment should not be ultimately made, the condition on which the land 
 was entered upon might be considered as having failed, all concerned 
 in the acts done upon the land would in such case become trespassers 
 ab initio. With this construction of the acts the owner would either 
 receive compensation for the land, or it would not pass from him, and 
 for all intermediate acts, he would have the ordinary common law rem- 
 edy against trespassers.” The ignorance of the law shown in this, 
 not only stares us in the face : but nothing but a miracle, one might 
 think, could have concentrated so much of it in so few words: Every 
 body knows that the legislature has no “ discretion as to the means of 
 compensation”; they have' to a certain extent as to the way in which 
 the owner is to get it : the whole court takes for granted that the Gen- 
 eral Court means the State to pay if the corporation do not ever, which 
 every body knows is not true ; for if they do not, the act is good for 
 nothing at all: and after this; tells the world about “ trespassers ab 
 initio and common law remedies against trespassers” being “ compensa- 
 tion” ! Mr. Chief Justice Parker ushers such doctrine into the world: 
 
we will see an elaborate opinion of his concerning- this : by and by. 1 
 might as well address the letter to him at once ; for, as far as I can 
 learn, some of them might misunderstand the technical terms I shall 
 be obliged to use. This in New Hampshire : that has boasted of Weare, 
 West, Smith, Mason, Webster, Bells, Bartlett and so many more. 
 
 Is it essential to exhibit the nature of this question, to bring forward 
 authorities to the effect that the State can give nobody else any thing 
 she has not got herself ; nor that she cannot devest one of her subjects 
 of his estate for herself without giving him an equivalent : that conse- 
 quently she cannot get it out of him and vest it in another without doing 
 it either ? No: it cannot be: not even with this unaccountable non- 
 sense before me. But, when she devests him of his estate to give it to 
 a private corporation, the people and their representatives hold one doe 
 trine on the principles of the process and their courts another. We 
 hold that the State means the corporation shall pay the debt themselves 
 whether or no. Our courts hold that she assumes the debt for her own. 
 They must hold it. So long as a contingency is left ; there is no estate 
 devested. We will explain this more at length by and by. If the cor- 
 poration can and will discharge it ; well and good : if not, the learned 
 Courts, pretty much throughout the United States, whether they know it 
 or no themselves, that is none of my business, have always held that 
 the government means to be understood that the State shall. They con- 
 sequently hold : “ That the inexorable rules by which whatever any 
 body else owes is determined in law, are released and suspended in favour 
 of private corporations like this ; when they seize the estate of one of 
 the State’s subjects : for it is the State contracts with him not the private 
 corporation.” This is the substance of the argument. It is of no use 
 to say that such doctrine would be met by the General Court or the 
 people with a shout of derision: that the courts assume wbatq|p» every 
 legislature swears it never means, and nobody ever supposed they ever 
 did. The General Court must take upon itself that the owner shall 
 somehow be paid from the beginning or no estate is devested. Of his 
 estate the humblest or the proudest subject may be devested, whenever 
 a legislative power chooses to incorporate half a dozen adventurers, 
 without getting a copper for it, without ever hearing he was going to 
 lose it, by a fiction of law, which is an absolute imposture. Some peo- 
 ple would say such a government was the most despotick in the world; 
 if it be; it is Harlequin that fills the throne: with the crown on his 
 head and the sceptre in his hand, and a court of law for his clown ; to 
 tell us what he says and see that it is done. 
 
 Without regarding this postulate that our courts must assume (they 
 cannot help it) I will first examine with you, my learned friend, what 
 this corporation is. This railway is a private corporation. The ex- 
 ploded fiction of the ancient common law, exploded in England itself as 
 I will show you by and by, that it is instituted by our sovereign, here 
 the people of New-Hampshire, for the public good, however generally 
 or advantageously diffused the uses may be to which it may dedicate its 
 franchise, give it no rights from it, except that of not dying, material to 
 
6 
 
 the present inquiry, that the General Court could not give just as well 
 to you or me. The uses for which it implored its franchise are not, 
 however, of so very publick a nature ; but it means to and can restrict 
 them to whatever it pleases: and of course we know it was implored 
 for the express and single purpose of private emolument. Had they 
 owned all their land their railway goes over, with a right to make dan- 
 gerous our highways; all that the publick can want them to do, they 
 could have done before it was given, and had a right to do without a 
 charter at all. The estate that they; get from their charter in the land 
 they take, becomes not the publick’s: it is turned into their own private 
 fortune as much as yours if you have one. Were the uses to which 
 this railway is meant to be be put never so publick, it is still left initself 
 a simple private corporation at common law. The General Court’s 
 choosing to accomplish purposes, in which the publick is interested (be 
 they never so publick, it makes no difference ; all corporations for the 
 most narrowed capricious private purposes, expressed in their acts, a 
 singing-school or a play-house, are equally by the same fiction of law 
 instituted for the publick good,)through an aggregate corporation, instead 
 of you or me, my learned friend, does not make it a publick corporation; 
 the General Court can hand over the high power of the State to take 
 your land for publick purposes against your will, to me as well as to 
 them: to be used by me alone with the same boundless discretion, with 
 my disinterestedness and my compassion, as it can hand it over to them 
 to use at theirs. In all disputes concerning property, the same prece- 
 dents, the same law, as far as we are concerned now, and the same estab- 
 lished principles of law must govern the judgments with regard to what 
 they have a right to do, or must be made to do, as with regard to 
 what I then can or must do. The right the State has kept to her- 
 self inMdteir charter does not make it less a private corporation : it 
 is to buy it ; not to take it without : and this right, our courts' now- 
 adays hold, the State had without expressing it. The State, nor peo- 
 ple of New-Hampshire, gets no property in the estate this railway 
 lakes under this franchise to take land against its owner’s will or use it : 
 which is just the same thing. The publick’s very right to thoroughfare 
 is practically at the pleasure of the corporation. And will the State 
 really pay for this estate, if the railway will not or cannot ? Why, they 
 tell me the thing was tried : it was asked to pay up for another railway 
 in full operation; but the corporation said it would not pay ; for it could 
 not ; it was bankrupt. The General Court told the petitioner: “ his los- 
 ing his estate was no concern of theirs ; they were not answerable, 
 neither was the State answerable for the value of the estate they took 
 by force from him and gave to a private corporation : it was no agent 
 they had substituted for themselves ; he must look to an action at com- 
 mon law : it was simply a quarrel about private property between two 
 people, with which the State had no concern after the act was made !” 
 Without they repeal its charter (and without a right to do that expressed 
 in the act, they could not do that under a judgment we shall see: and, 
 although the State assumes the right to itself to take the private property 
 
7 
 
 of these corporations when it thinks proper, at its value, it gravely 
 receives the right to take this one’s, on paying it a sum doubling about 
 every ten years at least from its beginning,) will this railway let the Gen- 
 eral Court take the very land it has devested and vested in them, and 
 devest them of it and give it to another railway, without the last’s pay- 
 ing them for such estate as they have in it ? Or would they say that 
 the General Court could not revoke its grant of the franchise : and an 
 estate in a franchise conferred by a General Court is better than a fee- 
 simple or an allodial estate the people of New-Hampshire have in their 
 lands, and had before they made the constitution or set up the General 
 Court at all? Is it? Would it let the General Court take it for the 
 State’s own use without compensation ? And would it not be trium- 
 phantly sustained by our courts and those of the United States ? Not 
 for the loss of the worth of their franchise : not for that only : but their 
 estate in this very land or on it ? A private estate they are assumed at 
 common law to have purchased : somebody had it before. The State’s 
 gift, then, of what it did not before own (for as we shall see, the State’s 
 own estate in its use is inseparable from the certainty of compensation) 
 is better than fee-simple, is it ? (Do we hold our lands of the govern- 
 ment of the State, or of the State itself; that is, of each other? Un- 
 questionably, we do of neither : they are strictly allodial : as much so 
 as in Norway. They were always held so till this Massachusetts hum- 
 bug about “ eminent domain” came along. Unquestionably we hold 
 them subject to be taken for her purposes by herself : but because we 
 gave that right to her government ; not because they ever belonged to 
 her. She creates my right to compensation in the same instant she 
 takes my estate : the two estates are inseparable from each other in 
 idea.) It would be absurd to accumulate authorities that these are pri- 
 vate corporations and all their property private property : for the less 
 learned than yourself, my learned friend, there is at hand to be consulted 
 a little book, fortunately published to us by “ Timothy Farrar, Esquire, 
 Counsellor at law,” purporting to be a report of the case of the “Trustees 
 of Dartmouth College against William Woodward” : in which an inves- 
 tigation of the nature of corporations will be found, the ablest I know 
 of; and accompanied with references to innumerable cases which each 
 may consult according to his opportunities. Read the arguments of Mr. 
 Jeremiah Mason and Mr. Daniel Webster and the admirable opinion of 
 Mr. Justice Joseph Story ! If indeed, in this celebrated case, the most 
 important except one ever determined in our country, these great men 
 so satisfactorily proved that a corporation, created wholly for publick 
 purposes ; and more vital ones to every body than riding to Newbury, 
 the education of the people and the propagation of the gospel; express- 
 edly by the crown for the benefit of his province of New-Hampshire ; 
 with no intention on the part of the men that gave it every thing it had 
 of their own emolument ; when who they were nobody knew, or if they 
 did, they were dead and gone, and their heirs unknown ; if it was held ; 
 against the statutes of our State and the judgments of its courts ; and 
 (I think most justly) determined : That such a corporation was a pri- 
 
vate corporation and its property private property : we need not hesitate 
 to pronounce upon the nature of this corporation, what it is at common 
 law : got up solely to make money by and the property in whose fran- 
 chise is sold from hand to hand by a stock-broker every day in the 
 market. This corporation then is a private corporation : and as all its 
 property of every sort they say themselves is private as soon as it is 
 theirs : its property in its franchise, nor the property it gets through its 
 franchise, nor any sort of a controversy it may carry on, solely on its 
 own account, concerning this property under its franchise, are of a pub- 
 lick nature, more than yours or mine. A contrary doctrine would in the 
 words of Mr. Justice Story be “ utterly irreconcileable with the decis- 
 ions, the whole current of them, since the time of Lord Coke, and 
 undermine the most solid foundations of the common law as this rail- 
 way set out to blow up Andrew Huzzy’s house against his will, without 
 paying him a copper, under a charter not to go within some miles of it 
 at the time that it did so. In the well-contested case of Charles River 
 Bridge against Warren Bridge in another State, it was argued with great 
 force by the present Chief Justice of that State and the present Secre- 
 tary of State of the United States; these justly celebrated men held : 
 “ That not only all the money they had got out of the publick in fifty 
 years before was private property, which by an article of their bill of 
 rights, to say nothing of the constitution of the United States, their Gen- 
 eral Court could give no authority to a private corporation to take with- 
 out a simultaneous (their opinions and mine are the same) provision for 
 compensation : but that the General Court had no power to determine 
 the nature of the compensation, the amount of it ; nor could the dama- 
 ges be ascertained but by agreement or the single way of a Trial by 
 Jury (the same article is in their bill of rights that is in ours ):” They not 
 only held this ; but they also held : “ That all the money they ever meant 
 to get out of us, twenty years after, was then private property already : 
 that their right to prospective toll was private property too, which their 
 General Court, nor the general government, nor another private corpo- 
 ration, nor any body else, could take from them again ; could diminish 
 or impair by giving the publick another highway, without simultaneous 
 provision for compensation, to be ascertained only by agreement or a 
 Trial by Jury.” The law, they said, was clear: they must have this 
 given them by the same act which carried off' their estate, or they had 
 still a right to make every body that wanted to go into Boston, pay them 
 toll or else swim across the river. So said one of the Justices: another 
 thought they ought to let people use their own boat ; the other two 
 agreed with him and thought they had no right to make him swim : and 
 that consequently that if he had a right to a boat, without paying them, 
 he might as well have another bridge without paying them either: but 
 Mr. Justice Story proved the whole that the Chief Justice and Secretary 
 urged, to be clear in law: pretty much all the court of the United States 
 said so too ; but unfortunately one of them said, “ that though the Mas- 
 sachusetts General Court was attempting a highway robbery, it was none 
 of their business” : and the thing fell through. If we had other opin- 
 
9 
 
 ions than we have of the nature of these private corporations, we must 
 give them up to such a phalanx of great men. It is not to be contro- 
 verted in this day, that this is a private corporation; and all its own con- 
 troversies concerning its property are controversies concerning property, 
 and suits between two or more persons. It it carry on others, in behalf 
 of the State, she must be answerable for their contracts if they cannot 
 or will not make them good: if she do not mean to be answerable ever, 
 she can devest none of her subjects of his estate, till in some other way, 
 compensation by her laws she absolutely assure him. 
 
 The Lord High Chancellor of New-Hampshire goes on to say: ‘ Should 
 the rule be established that when private property is taken ior publick 
 uses, previous compensation must in all cases be made, it would in many 
 instances destroy all beneficial use of such property, and would render 
 the interest of the individual citizen altogether paramount to that of the 
 publick.” He has, as 1 will show by and by, as far as this case is con- 
 cerned, the full powers and obligations of the Lord Chancellor of England 
 by statute. It is common for him, I believe, to ask for the judgment of 
 the court of King’s Bench, on difficult questions of law. Ours means 
 here by “ the publick” this railway : and by “ the individual citizen” the 
 owner of the land. In a case, which established the law there, and 
 similar doctrine was sustained by Lord Chancellor Eldon and Lord 
 Chancellor Lyndhurst, and also on appeal, by the House of Lords ; 
 Charles Abbott, Lord Tenterden, whom I believe to have been full as 
 good a lawyer as Mr. Chief Justice Parker, says: One of these corpo- 
 rations for a publick highway is “ a company of adventurers,” and the 
 owner of lands near is “ the publick :” and : “ That any ambiguity of 
 the terms of the contract (!) must operate against the company of adven- 
 turers (!) and in favour of the publick (!): The proprietors therefore 
 can claim nothing which was not clearly given them by the act :” by 
 “ contract” he means the act of incorporation : as Lord Eldon shall 
 explain by and by. Our Chief Justice here holds that the railway is 
 the publick : and he also, as I have said, holds without knowing it, that 
 the estate vests as soon as the act is made, because the States’ intention 
 to see the owner paid is not to be questioned in a court of law : he must 
 hold it ; I can hardly believe him to have read the nonsense about 
 “ trespassers ab initio and 1 will produce his own elaborate opinion 
 about it by and by. This is though the State never has paid in a single 
 instance that we know of; though there is no way to make her pay ; 
 though she tells us in the acts to look to them alone; and plainly tellsms 
 that if we do not in a certain time, whether they pay or no, we shall not 
 be paid at all. I should like this doctrine that the State pledges her 
 honour for the railway’s damages promulgated in the General Court. 
 Every body knows she does not ; and that they are to be recovered by 
 an action at law against the railway or not at all. If by a fiction of law, 
 which is a counterfeit and imposture, every one’s estate may be vested 
 in adventurers without compensation or assurance of it; for their purpo- 
 ses simply ; without the owners or the district of country interested in 
 the question’s having heard such a thing was dreamed of, till Terence 
 
 2 
 
10 
 
 O’Reilly, Lawrence O’Rourke, Samuel Hale and Patrick Maguire show 
 themselves and say they are the State, and say with truth that Mr. Chief 
 Justice Parker says so too ; a trick of' despotism a Feudal king would 
 not have played off in England five hundred years ago, without a writ 
 of “ ad quod damnum” to save his own rights if nobody’s else ; he would 
 have \et us know they were coming somehow or other : when not ten 
 peop le hear the act read in a July afternoon : if this be law ; against the 
 judgments of our courts in similar cases; against the General Court’s 
 own words; against the sense of every man in the community ; then we 
 do live under a government the most insecure and the most preposterous, 
 the most outlandish and the most ludicrous. Without regarding farther 
 this fiction of law, now, having found out what a railway is, let us see 
 what an article of our bill of rights is. 
 
 Our bill of rights, so far as it do not contradict the constitution of the 
 general government I hold to be the supreme law of the land: irreversi- 
 ble by statute, llow far the people have a right to alter it themselves is 
 not very clear: but it is certain that till they do, the plain meaning of 
 its language is not only irreversible by statute : it is equally so by pro- 
 visions of the constitution of New- Hampshire, the judgments of her 
 courts or the ancient common law. The notion of some, with respect 
 to the English bill of rights, that it only proclaimed more publickly what 
 was law before, that courts should look to the law itself for what they 
 were sure to find in it, will not do here. Ours was not meant to inform 
 the world what the law was ; but, so far as it goes, to give orders what 
 it should be thereafter. It is the expressed words of the contract of the 
 people of New-Hampshire that they will not, all the rest of them together, 
 infringe nor impair certain rights of the humblest man among them, nor 
 suffer their government to do it either. All powers common to other 
 governments, all despotick power, be it never so right in appearance, so 
 convenient or necessary to them that temporarily have the government 
 in their hands, every consideration of publick convenience or necessity, 
 must fall to the ground in conflict with them: they are not in the bond. 
 As the English bills of rights, there are divers of them, was meant to 
 keep the crown steadier than it might otherwise be : some people might 
 see in ours a disposition to secure each subject from the caprices of his 
 sovereign. I will not argue this question : not being one of those that 
 believe much that when people make a bond of their own “special grace, 
 certain knowledge and mere motion,” a bond, made of their own accord, 
 not to do whatever they have a mind to whenever they please, they will 
 keep it longer than they choose, it is certain that the most successful 
 attempts to set right the carelessness or nullify the caprices of our various 
 sovereigns have been made through what is a bill of rights in the 
 constitution of the general government. Never having been in England, 
 in my life, much more than a twelvemonth, 1 do not know what their 
 publick thinks of theirs : but no practice or custom, however long 
 established, of the legislative, executive nor judicial power, can sustain 
 itself here against the express words of ours. The most momentous 
 power in which our court of the United States has been by itself installed, 
 
it authoritatively exacts from what is a bill of rights. If ours did contain 
 more than was called for; if the scrivener were too officious ; with this 
 our courts have nothing to do : they have no excuse for getting out of 
 their road when it is before their eyes written in such large and legible 
 letters on such a guideboard. There would be no doubt of the obligation 
 of English courts to refuse to acknowledge a statute contradictory to any 
 of theirs, if they had power to do it: this our courts have : they must 
 regard ours, as it is clearly set forth in express words, in its direct 
 meaning and no other, as the supreme law of the land. In the great 
 case of Dartmouth College this last doctrine was carried so far, that it is 
 generally understood that the court interpreted a clause against the 
 meaning of the people that established it : wholly by the express words. 
 Though the General Court may have meant, in this case, an atrocious 
 and footpad robbery, and the other court, when it took to the highway 
 with them, did not know enough of the usages of the road themselves 
 to show the others how, and their judgment was contrary to law: still, 
 keeping, like the court of the United States, such a mouse-trap always 
 set, I do not contend for: but in the interpretation of our bill of rights 
 and the consistency of the General Court’s statutes with it, our courts 
 are not to be governed by deference to a coordinate power: they have 
 no more power to construe statutes favourably to the power of the 
 General Court than they have to their own ; to transfer the judicial power 
 from themselves to them ; to watch and sanctify the caprices of other 
 people : they have higher interests to protect and nobler duties to per- 
 form. The people of New-Hampshire’s notion of their bill of rights is 
 sufficiently set forth when they close with the general orders of the 
 thirty eighth article. It is clear that all property this railway can ever 
 take or lose on its own account, it takes and loses as private property: and 
 all its controversies concerning its property must be determined in 
 accordance with the bill of rights. Except then the State, when, with 
 however publick a purpose in view, it obliges us to sell our land or any 
 thing else to them, do clearly assure us that she will pay for it 
 if these private corporations do not : the damages they are to pay, its 
 valuers a controversy concerning property between private persons, and 
 can be determined in no way but what is allowed by the twentieth 
 article of our bill of rights. 
 
 The twentieth article is in these words. “In all controversies con- 
 cerning property and in all suits between two or more persons, except 
 in cases in which it has been heretofore otherwise used and practised, 
 the parties have a right to Trial by Jury, and this method of procedure 
 shall be held sacred, unless in cases arising on the high seas and such as 
 relate to mariner’s wages, the legislature shall think it necessary here- 
 after to alter it.” This is the supreme law of the land : indeed the arti- 
 cle says it is a natural right of one of our race : not that it gives it to 
 him ; but that he has it: the law must be obeyed. Let me examine this 
 article. If the people of New-Hampshire had tried to express themselves 
 in a way absolutely incapable of a double meaning, they could not have 
 been more successful than they are. They clearly promulgate and 
 
12 
 
 decree that, with the exceptions expressed in the article itself and no- 
 where e'se, in all controversies concerning property and suits between 
 parries, neither subsequent practice of courts of law, ancient practice of 
 the common law elsewhere, nor statutes of the General Court, shall 
 ever supersede (they say he has it already without a bill of rights, the 
 majority of the people could not take it away, if they made a new con- 
 stitution); shall ever supersede the right to aTrial and the right to aTrial 
 by Jury. How far that conflicts with the jurisdiction of the Lord Chan- 
 cellor of New- Hampshire I will not enquire in this letter; it not being 
 material to the question. But if the right, whatever it may be, the Gen- 
 eral Court gives to these private corporations to my land against my 
 will, the very franchise itself, be as much private property as my right 
 10 my freehold ; and they, and the courts with them, contend it is ; the 
 damages the corporation is to pay for devesting rue, are a controversy 
 between me and them, not the State, concerning property and suits 
 between parties. The State does not pledge her honour to pay my cor- 
 relative and coeval claim to its price: such fictions of law will not do in 
 the nineteenth century here more than in England : it is too late in the 
 day. “ Hsec ludibria religionum,” as my friend Pontius the Samnite 
 told the Roman Consul begging off on a point of law, “ non pudere in 
 lucem proferre,et vix pueris dignas ambages senes ae consulares fallen- 
 dse fidei exquirere?” They are in the dominion of this article, if it 
 cannot be shown that a different sort of Trial was established previously 
 to: 1792: or rather: 1784: when the article was established law as now; 
 and be shown what sort of Trial there was. Some Trial there must be 
 by the constitution of the United States. I will throw into another 
 paragraph the consideration of whether this property, this right to take 
 the land against its owner’s will, is in this railway, fairly vested, till the 
 Trial by Jury and a Trial, if the General Court ever attempted to vest it 
 in them before : or at any rate : till the owner’s right to his Jury have so 
 much accorded to it, that he has some chance to know when he is to 
 get it, to say nothing of his compensation : all I have to do with now is 
 whether the supreme law of the land gives him the right to a Trial by 
 Jury or no at all. I hold that he has a right to it, under this article, 
 which neither Railway, General Court nor any other court can get out of 
 him, without it be shown without doubt, there can be no constructive 
 loss of the Trial by Jury, that he would not have had it previously to 
 the time I have named : it must be shown without ambiguity or evasion: 
 the contrary custom must be described with accuracy and exactness and 
 clearly proved. The language of these acts might be thought to be that 
 the Trial by Jury was a matter of favour on the part of the General Court 
 to its bumble subjects : the doctrine promulgated by the Courts in this 
 judgment might be thought to be that it was of no consequence at all : 
 the language of the bill of rights is that “ it shall be held sacred :” it says 
 nothing about Trial by committee of men named through the legislative 
 power: and the people mean to have implicit obedience to the 
 precepts they give. Even in Massachusetts her courts, here, now 
 lately, have said that they could not assume an intention on the part of 
 
13 
 
 the General Court to take it away. The same courts held the same 
 doctrine, more than forty years ago in a suit, both parties to which 
 quarrelled about property in franchises: and this doctrine was held by a 
 court composed of men of the greatest eminence. The General Court 
 had provided, and within a time too, if 1 recollect right, 1 have not the 
 book, prescribed in the act, that a wealthy corporation should pay full 
 compensation for any injury sustained by an humble person, not to his 
 lands but to the future proceeds of his franchise (is a franchise better 
 than fee-simple?) in a way full as unobjectionable as in this railway’s act: 
 the court never troubled themselves about the General Court’s neglect- 
 ing to give him a Trial by Jury to determine the damages to his fran- 
 chise ; they told him it was his private property : and that no act of the 
 General Court could take away his right to a Trial by Jury to ascertain 
 them. As this corporation was a publick highway and indeed both, was 
 it clearly not the opinion of that court, that these things are in the 
 dominion of this article ? Had such a judgment been solemnly pro- 
 uoimced (the thing was not disputed there) in New-Hampshire, there 
 would be no place for farther argument. It will be asked : why I raise 
 a ghost to attack it? That it is not disputed, it will be said, that he has 
 a right to a Trial by Jury. It is on the high road to being disputed, 
 when every such act exposes the owner to the risk, and a terrifying one 
 to very humble persons, of a large sum of money to pay, for getting as a 
 boon what belongs* to him already ; one would think : when the Gen- 
 eral Court drives a subject off his land, at its own pleasure, and says he 
 shall be paid for it by somebody else, if he do not break first, at some 
 future time named by them, a price for it determined by people named 
 through themselves; without he is willing to run the risk of a suit at 
 law with a gigantick corporation: when anything is tampered with, 
 without sufficient reason, that the meanest subject thinks, and the bill of 
 rights says is, his “ inestimable privilege :” and the records of courts of 
 quarter sessions, a century old, are rummaged to swindle him out of his 
 Trial by Jury on so large and increasing a scale now. The thing is too 
 plain : the proposition concerning the Trial by Jury must be agreed to 
 as soon as stated : if this corporation be a private corporation, and if its 
 disputes about damages be what 1 have said : if the bill of rights be what 
 I have said too : This owner of the land, till it be shown that he would 
 not have had this right in the year : 1784 : till it be shown circumstan- 
 tially and satisfactorily proved ; had a right to a Trial by Jury : and of 
 this right no practice of courts since, no common law elsewhere, and no 
 act of the General Court, till it “ expressly suspend the laws of the State,” 
 can strip him : neither by implication nor even in direct words. 
 
 To show that he had no such right, it must be completely proved, that 
 in the colony or State of New-Hampshire, the doctrine that the damages 
 for a private corporation’s taking land in this way, without its becoming 
 the State’s and her guarantying their payment, and without a Trial by 
 Jury, some time or other, was acknowledged by its courts. Where is 
 the judgment to that effect of a court of record ? The custom with 
 respect to town and country roads would not prove it : nobody will 
 
14 
 
 pretend that their franchises are private property or their damages con- 
 troversies concerning property between private persons. But by the 
 very highway act : “ anno regis Georgii (primi) quinto (: 1720 :) which 
 as far as i can see from the book, was in force till: 1771 : the Trial by 
 Jury is expressly established iu all such cases. Such franchises of fer- 
 ries as subsisted as private property does not prove it: for the right was 
 the publick’s already when they were granted : the right of landings to 
 the ferry would be more to the purpose : but this is mere hair-splitting : 
 and no record of any dispute subsists. Grants of such unrestrained 
 franchises as these, of bridges and roads, if there were such, which I do 
 not know of, when the lands pretty much belonged to the crown or the 
 colony or the publick in some way, or the Indians or the people that ask- 
 ed for the franchise, will hardly be a respectable crowbar for our courts 
 to carry about in their hand to overthrow the Trial by Jury, in our stage 
 of every thing, in a class of cases increasing in number with uninter- 
 rupted speed, and in which the chance to get rid of it, is sure to be made 
 careless use of and ill use of, in the end. The power of the General 
 Court to oblige the owners, most of them in practice, to accept of a Trial 
 by committees, in place of the Trial by Jury, has not a shadow of 
 foundation, and the statutes, so far as they embarrass their getting it, are 
 contrary to law. I have looked through this book : purporting to be 
 published : 1771 : one statute it contains was made in April of that year, 
 called “ acts and laws of his majesty’s province of New-Hampshire :” by 
 order of the general assembly ; and which also contains the commission 
 of president Cutts, which was the charter of the province and erection 
 of her courts of record : uncommonly well printed at Portsmouth. It 
 must take strong proof to satisfy a historian, that so uncalled-for and 
 unlooked-for a deviation from the common law of England as taking 
 away a man’s Trial by Jury, during one hundred and forty years, from 
 the time when my ancestors, Ambrose Gibbon and others (I should 
 almost take it up as a personal quarrel), established the first permanent 
 settlement of the English in New-Hampshire at the mouth of our creek : 
 1631 : could subsist, without being ever alluded to in thefi^statutes or in 
 Cutts’s letters patent. The highway act gave it, as we see, when there 
 were not fifteen thousand people in New-Hampshire. Nolfranchise ofa 
 publick highway to take toll appears to have subsisted but some ferries: 
 they of course show nothing. It is plain that as late as: 1771: the 
 province nor its general assembly knew nothing of their own power or 
 that of the crown to take one man’s estate and give it to another by 
 statute, without his getting a Trial by Jury. No English act of parlia- 
 ment, for that purpose, would have changed the common law here : it 
 would have rested on the despotick power of parliament alone. Private 
 property was carefully looked to. The statute in relation to white pine 
 trees, so essential to England’s interests then, excludes in direct words 
 such as were private property : it extends to his majesty’s woods alone. 
 Royalist days put out no such doctrines as these we hear now. I can 
 find no laws justifying the supposition that such doctrine had got in down 
 to : 1784 : Fish out your custom, then, land it on the bank and let us see 
 
15 
 
 what it is. They will not trouble themselves about history much : 
 of course this system ot incorporated wealth was not foreseen ; or 
 it was too momentous not to be named. It has nothing 
 to do with the classes of cases excepted, which were meant to 
 be very different. If the State do not guaranty herself the per- 
 formance of these contracts, and she do not make them with the 
 owner when she vests any of his estates in them : 1 consequently hold : 
 That any of her subjects had in him, when his property was thus taken 
 from him by an act of the General Court and given to a private corpo- 
 ration, a right to get his compensation for its loss finally determined by 
 a Trial by Jury: 1792: and consequently there is in him, in the same 
 case now, and nothing so long as our present constitution subsists, can 
 get it out of him, a right to a Trial by Jury. 
 
 1 shall be asked, 1 have said, why 1 raise a ghost to attack it : it is not 
 disputed that he ought to have his Jury. There is good reason for my 
 dwelling on it. When I look into our Jaw and see the consequences of 
 statutes’ being drafted by people careless of the law or to whom it is 
 unknown, and interpreted by not much better: when I see the safety of 
 the estates of thousands, throughout these States, resting wholly on the 
 faith of statutes and often, of statutes, which if I wanted to make them 
 stand good in law, I should have great trouble in doing it: and then 
 foresee the likelihood that the legislative power may, in the end, take 
 advantage of this to disperse and destroy them ; I shall continue to be- 
 lieve it as well, that the habit of obeying the pi escribed methods of law, 
 where tenures of property are concerned, should be established. The 
 disregard of the Trial by Jury in devesting estates for the good of these 
 private corporations, kicking it out of the way with contempt and put- 
 ting the humblest peasant in danger of the costs of a regular suit at law 
 to get it, is an outrage upon justice and a disgrace to the General Court: 
 but suppose, on investigation, that it really is not disputed that so far the 
 law is plain : that the position that the owner ought to have a Trial by 
 Jury and his right to compensation are positions the court does not mean 
 to storm: very good, my learned friend, their artillery is turned, where 
 those who do not know the force of fictions of law, do not expect to see 
 their balls coming : and it is deliberately upheld by our High Court of 
 Chancery, indeed taken for granted: That when the law says the owner 
 has a right to compensation and a Trial by Jury, the law by no means on 
 that account necessarily intends that he shall ever get any ot either. If 
 they be right, fictions of law can boast of a career of victories unexam- 
 pled in their native land. Well : let us see what compensation is: our 
 Lord Chancellor says : not very clearly what it is, for he thinks it may 
 be any thing ; but whatever this “ general provision as in the opinion of 
 the legislature,” may be : “ That it is subject at the same discretion to 
 the delay attendant on the action of a committee, and of a Trial by Jury, 
 and also to the contingency of non-payment : but if payment should not 
 be ultimately made the condition on which the land was entered upon 
 might be considered as having failed, all concerned in the acts done up- 
 on the land would in such case become trespassers ab initio. With this 
 
16 
 
 construction of the acts the owner would either receive compensation 
 for the land, or it would not pass from him, and for all intermediate acts 
 he would have the ordinary common law remedy against trespassers.” 
 The Lord Chancellor of England is guardian of all infants, idiots and 
 lunaticks : as to ours, people can judge lor themselves, which way the 
 guardianship ought to be. The notion that the General Court has pow- 
 er to make the owner take for the value of his estate, ascertained by a 
 Jury of the country and paid in the lawful coin of the realm, “such 
 g-eneral provision as in their opinion who have no power to ascertain 
 it at all, shows folly enough : but that they can go on and make him take 
 this compensation, such as it is, “ subject to the contingency of non-pay- 
 ment:” and that the people they sent to kick the owner out by law, 
 should be afterwards kicked out by him as “trespassers ab initio:” by 
 law too: is a new notion of the tenures of property. The thing is too 
 laughable: but our. tenures of property are not to be sported with in this 
 way by half a dozen young gentlemen in a committee-room of the Gen- 
 eral Court, of a summer’s afternoon after dinner, with swindlers in the 
 lobby and managers on the floor to egg them on, and people on the 
 bench, that ought to have a cap and bells or a straight jacket, to back 
 them both up. Let us examine what compensation is ; and when the 
 estate is completely vested in the railway on the acknowledged princi- 
 ples of our common law. I am grieved to differ from our learned court : 
 I am still more to differ from what has been the practice : but at such a 
 defence of the practice as this, it is impossible to do any thing but laugh ; 
 though the question involves the deepest foundations of the tenures oi 
 property of the private corporations themselves as well as every body’s 
 else, against each other and the General Court. 
 
 The State, as far as 1 can understand it, through its General Court, 
 says it has power whenever it will to create instantaneously two equally 
 indefeisible estates : neither of which existed before : and neither was 
 vested before in the owner nor the corporation. These must be com- 
 pletely equal to each other. The one is the corporation’s right to his 
 land : the other is his right to their money for it. This is the only sense 
 I can make of the American law in relation to private corporations for 
 public highways. 1 am not disposed to dispute the General Court’s right 
 to perform this feat ; that they can vest a complete right to one without 
 vesting a complete right to the other: I utterly deny: Mr. Chief Justice 
 Parker to the contrary notwithstanding: who says: “That compensa- 
 tion subject to the contingency of non-payment is compensation.” The 
 State’s right to take private property without compensation herself will 
 not be pretended : unfortunately, the American doctrine with respect to 
 these damages has been copied from the English: whose parliament is 
 beyond control. Their old law of highways, the king’s, of turnpike- 
 roads and such, is founded on wholly different principles: but that of 
 these franchises is more like to deceive us: parliament can vest an 
 estate there in them, at least nobody can dispute it, without compensa- 
 tion. The State here cannot even in herself. It is plain that the first 
 step in this shifting of estates is for her to get the estate out of its owner 
 
17 
 
 into herself. She must give an equivalent: as good an estate as he had 
 belore in every way. She must absolutely give him its value in money 
 when she takes it; or she must give him absolute assurance of it. No 
 law can hold an estate with a possibility of his never getting possession 
 of it equal to the one he has in possession. If she take it for her own 
 works he has an estate in possession ; for then that her honour is 
 pledged is not to be disputed in a court of law ; at least I shall not do it : 
 and her honour being necessarily incalculable in amount and inexhaus- 
 tible in nature, contains in itself the damages however large they may 
 turn out, and they are as good as paid. But here is the hinge of the 
 whole question. If she assure them their property in their franchise: 
 she must assure him his property in whatever damages he is to get for 
 the injury their franchise does him. They are not to have an estate in 
 possession and he a contingent remainder subject to be defeated by the 
 bankruptcy of the corporation or divers acts of the General Court. To 
 get over this insuperable difficulty our courts assume, as I have said 
 without knowing it, that the State pledges her honour that he shall be 
 paid when she attempts to vest his estate in them. If she do not; their 
 franchise vests necessarily in them no property of his at all. The sim- 
 ple question then is whether she does : it is notorious, it is indisputable 
 that she does not : and the fiction of law cannot stand. The whole 
 estate is in nobody but him. She obliges him to sell to them for its 
 just value. The English precedents have deceived us. The value must 
 here be positively ascertained by a Trial by Jury; and the value must 
 be paid before the estate is completely devested. The law can contem- 
 plate no contingency in this matter : it is an outrage to suppose it. If 
 his estate remain contingent on their solvency or any thing else : theirs 
 must be contingent too. The State cannot force him to take their 
 credit : but when she summons a Jury and pays him what the Jury says 
 through them, or any body else : then she devests him of his estate and 
 vests it in them She cannot make him take in return for his estate in 
 his present possession, another which, it is acknowledged, can never be 
 in his actual possession till the positive occurrence of a future event 
 which innumerable circumstances may keep from happening at all. If 
 the State choose to do certain things through other people, and mean to 
 give them her own full power ; she must be answerable for all their 
 acts and contracts in her employ. Tf she will not be so : she makes 
 them private persons without her full power. She can devest none of 
 her subjects of his estate till, when she does so, she vests another estate 
 completely equivalent in nature in him. Such is the lawful coin of the 
 realm or the pledged honour of Newllampshire. The one is just as good 
 as the other and nothing else is as good as either. She cannot make him 
 take in return for his estate an action for damages against some other sub- 
 ject at common law: nothing but the money: Or her assurance, her 
 obligation, her debt and her bond : banging upou no dubious and un- 
 certain event. She is not to get off with assuring him that tlie sheriff 
 will give it to him, nobody knows when, if the corporation have it to 
 give and the courts and sheriff together can find out where it is. This 
 
 3 
 
13 
 
 is no absolute assurance that he shall be paid. This is not equal to the 
 estate of which she devests him, and they say she vests in them. Then 
 if she choose to make such a contingency ; that is her business : they 
 accept their franchise such as it is. These private acts are nothing to 
 him then ; they neither vest nor devest: till agreement ; or the contro- 
 versy between the parties is determined by a Jury of the coiMtry and 
 the money paid : then the estate, such as it may be, is completely vested. 
 English precedent as I have said has no application here. A statute is 
 their supreme law of the land: and similar corporations there are creat- 
 ed by a sort of publick act: but 1 will venture to say none such are made 
 without all people, to be affected by them, being fully warned, heard if 
 they want to be, and the government fully satisfied that the corporation 
 will pay. Parliament would about as soon think of devesting estates in 
 this careless way as of dethroning the queen. The power of the State 
 to take away estates and vest them in other people, 1 am not disposed to 
 argue about ; her power to do it without giving her own credit or the 
 money; I utterly deny : but when the value is determined by a Jury 
 {summoned by statute, I will agree to no tampering with tenures of 
 property); and the value is paid: then the estate is completely vested and 
 he resists at his peril. 
 
 The State, as I have said, wilfully leaves things in this way, and with 
 her reasons in a court of law we have nothing to do. The damages are 
 a controversy concerning property between two private persons and the 
 suit can be determined by a Jury alone. The courts cannot make him 
 take “ security to their satisfaction” in their private capacity, for it is 
 nothing more: the Jury alone can tell, by the supreme law of the land, 
 what is to be paid. No matter whether it be right or wrong that It 
 should be so : it is enough that is so : no other evidence in the world 
 but their judgment can be taken by a court of common law, nor a court 
 of equity either, as to what his estate is worth now. The courts cannot 
 make him take the other party’s bonds for what the Jury will “prob- 
 ably” give ; how are they to know what they will give ? The 
 Jury is as indispensably required to find out what the bonds should 
 be as what the money should be : and has the State given the court right 
 to judge of the goodness of the bonds and to assess the damages ? Are 
 they going to take this under their equity statute ? We should soon 
 enthrone our High Court of Chancery into our lord paramount to hold 
 our estates of : if they be to devest estates at pleasure. They have no 
 power to guess what the compensation is to be. No testimony they can 
 get at is worth one farthing in law till the Jury tell. Therefore then : 
 If the State, through her General Court, give him in return for his estate, 
 neither its value nor her pledged honour for it : she gives them no 
 estate in it; till she summon a Jury by statute : till the damages have 
 been assessed according to law : and they are paid : then their estate, 
 in expectancy before, is completely vested. The other doctrine has 
 arisen insensibly from jumbling these private corporations with English 
 turnpike-roads and their corporations for publick highways ; where the 
 law is essentially unlike in theory and in practice still more : from 
 
19 
 
 jumbling them with the State’s own works, when she does pledge her 
 honour: from knowing that incorporated property is always in danger, 
 though they are taking just the right way to crack the string by pulling 
 it too hard : and, when such things were popular, from dread of the 
 legislative power : the risk of nonpayment may be generally of no 
 account : but unsettling the tenures of property in this careless and 
 contemptuous fashion is a serious matter. What these vast interests are 
 to be the better in the end, in these United States, for arraying the ten- 
 ures of their franchises, and the tenures of their property against other 
 franchises, in such a cloud of intricacy and suspense, I do not profess 
 to comprehend. Well : the owner’s right to compensation and the cor- 
 poration’s right to his land I defy all the lawyers in the world to make 
 tor an instant separable from each other. His right and theirs must keep 
 along side of one another : the door must not open outwards only ; it 
 must open both ways : if his estate be in expectancy ; theirs must be 
 so too : if his getting into their money be doubtful ; doubtful too must 
 be their getting into his land. But when the damages, assessed accord- 
 ing to law, have been paid: then they go in. The law does not mean 
 to treat them harder than him ; nor him than them: it must mean to 
 treat them both the same : if they must wait too long for a Jury ; let 
 them look out for a better act: a court of equity cannot relieve here : if 
 the General Court do not tell them how they are to get a Trial by Jury ; 
 let them get a better act : a court of equity cannot summon it for them : 
 “ The State,” they say, “ wants us to go in now fof the public good ; 
 forthwith !” No such thing : she knows the public good ; and if she did 
 not tell them how to get in according to law, she meant them to wait till 
 she did. How can she tell us any thing but through the statutes? We 
 can, in these things, get no kind of a sound out of her any other way. 
 Their right in other people’s land must rest on the statute, here and in 
 England both ; interpreted by the common law : not on the will of a 
 court of equity. Here these statutes must also consist with the supreme 
 law of the land. 
 
 After this hear our Lord Chancellor’s nonsense : “ The corporation 
 has filed at once without waiting for the report of the committee, a bond 
 conceded to be amply sufficient (conceded by whom? it was not by 
 the petitioner, I am told) to indemnify the petitioner against any claim 
 of damage he may recover and have professed a readiness to place with 
 the clerk of the court a sum in specie sufficient for this purpose in lieu 
 of said bond, if this would obviate his objections to the acts of the corpo- 
 ration.” What in the name of folly had he ever to do with filing this 
 bond ? Are he and the clerk of his court going to take the place of the 
 Jury? Show me the statute ! Though the State’s statute to that effect 
 would have been good for nothing if she had made it: but she never 
 did. Does he absolutely think that he himself has power to devest one 
 of his estate and give it to another, when any body files a bond in his 
 court of equity (what business the bond had to be filed there I do not 
 know) or shells out money to the satisfaction of him and his clerk ? Jf 
 he had done such a ridiculous thing as to file this bond, he need not 
 
have gone on ami told every body of it. 1 will say more of what our 
 courts of equity ought to see to, at this time, before I get through. 
 
 One of Mr. Chief Justice Parker’s most celebrated judgments so well 
 expresses my views on some of these points that I will transfer some of 
 it. This franchise is property. No part of a man’s property shall be 
 taken from him or applied to publick uses, without his own consent or 
 that of the representative bod}' of the people : bill of rights : this has 
 always been understood necessarily to include, as a matter of right and 
 as one of the first, principles of justice, the further limitation, that in case 
 his property is taken without his consent, due compensation must be 
 provided. It is not supposed here, that even the consent of the repre- 
 sentative body of the people could give authority to take the property of 
 individual citizens for highways, bridges, ferries, and other works of in- 
 ternal improvement, without the assent of the owner and without an in- 
 demnity provided by law. No distinction is made in the constitution 
 between property of one description and that of another : and if a fran- 
 chise is property, we do not discover upon what ground it claims an ex- 
 emption from the same liabilities to which other property is subjected.” 
 There spoke the spirit of the common law : then spoke the shade of 
 Sir John Holt. “The position that the defendants may take their pro- 
 perty because the plaintiffs will have a right of action, cannot be sup- 
 ported. Had the plaintiffs seen fit to suffer their property to be taken 
 and sought redress for the injury by action, it might have been support- 
 ed: but this is not the compensation intended by law where property is 
 taken for publick use.” “ It is not by way of damages to be obtained in 
 an action for injury done, that the party is entitled to be indemnified for 
 property thus lawfully taken.” “ So far as the defendants may act law- 
 fully pnder their charter they will not subject themselves to an action 
 for an injury. So far as they cannot lawfully act, they ought to refrain 
 from acting.” (So said Lord Chancellor Parker: Lord Chancellor Par- 
 ker says : “ This compensation is subject to the contingency of non- 
 payment: but if payment should not be ultimately made the people 
 concerned would in such case become trespassers ab initio, and the 
 owner would have the ordinary common law remedy against trespass- 
 ers.” And this he said was compensation : “ Zeu, alloi te theoi,” where 
 
 is he going next ?).” His honour then denies justly: “ That equity will 
 not relieve against a statute : That the plaintiff’s property may be taken 
 for publick use, although no compensation is provided in the charter 
 because the plaintiffs might have an action.” This is the law and why ? 
 Because the law would not let an estate vest through a wrong ; not only 
 that : Because a right of action is an estate not so good as the one the 
 owner has in possession. It is no equivalent. “If,” says he farther: 
 “the defendants have no right and proceed, the plaintiffs might be with- 
 out any adequate remedy: for upon a judgment at common law for 
 damages against the corporation, all the corporate property might be 
 wholly insufficient to indemnify the plaintiffs for the invasion of their 
 right. The individuals concerned might be able to respond and still the 
 remedy inadequate.” To be sure : his honour sets the matter at rest. 
 
21 
 
 All i lie State ran make me take in return for my property is its value or 
 absolute certainty of getting it. The two rights are the same ; one can- 
 not exiffbefore the other and she can give no more than she has. If she 
 give me neither the money nor her absolute assurance of it she has 
 vested no property of mine in herself and can vest none in any body 
 else. His honour’s position 1 thought impregnable till he stormed it 
 himself The same chancellor, bequeathing laws to his court, estab- 
 lishes that the common law remedy against trespassers, at some future 
 day, is compensation at common law! 
 
 Let us look and see if the General Court have been intentionally care- 
 less of this man’s rights : for it looks to me as if they were better lawyers 
 than the courts: who go so far to please them as not only to establish 
 the lawfulness of the unlawful powers they assume ; but of those they 
 never did. I wish the General Court would turn round and thank them 
 in registered statutes like the statute of Edward : put the bill of rights 
 and the amendment to the constitution of the United States into a 
 statute and declare them to be law : it would be advantageous to our 
 courts. The railway is the party interested now to interpret them to 
 show that the owner’s compensation and Jury are found in their statutes: 
 not he. He does not hold his estate of a statute. It is their look out to 
 twist them to a shape that will justify a court in determining that they 
 do assure him of the certainty of both: for that is what is to vest the pro- 
 perty in them. Not a spark of it can they draw out of him if they cannot. 
 The New-Hampshire General Court, after repealing an act which au- 
 thorized them to take and hold land for embankments, et cetera : just as 
 much and wherever they pleased in New-Hampshire ; in express words 
 (a pretty franchise to be huckstered through a country by jobbers : who 
 is to stop them P What is to keep them from extorting money from any 
 body they choose by threats of destroying his property? No Trial by 
 Jury or pay till they be done: the General Court they say could not 
 without the right to repeal, it would be to revoke their grant ; and the 
 whole year must go by first : few people would risk a suit with them: 
 and the Courts would not stop them by injunction if they took half a 
 dozen villages fifty miles off: as we shall see) : after repealing such a 
 statute as this, worthy of Mourad the second and Selim the first; Enacted 
 by a publick act : That the corporation or the owner (what has he got to 
 do with it ?) might apply by petition to the court of common pleas for 
 the county, for a committee to assess the damages and report to the 
 next succeeding court, in the same county, of common pleas : the com- 
 mittee was to give fourteen days notice : and then either party was to 
 have a Jury on application therefor in writing. The report of the com- 
 mittee was legal testimony, with other for the Jury : and was evidently 
 meant to be for the court of common pleas, for a purpose we shall see. 
 So far ; so good. The General Court knew he had a right to a Jury ; 
 and meant to assure him he should get that: but it vests no estate in 
 his land in the railway yet ; for it does not assure him that it will ever 
 do him any good. The State has not assured him yet that he is ever 
 going to get the damages the Jury is going to assess : and it is none of 
 
22 
 
 his business to petition in writing for the Jury : it is the railway that 
 wants to shift the estate. The seventh section of the same act does have 
 in it some faint inkling of what ought to be clearly set forth : if» rightly 
 interpreted : as our courts interpreted it, he may be kicked out of doors 
 two or three years before it come into action, and then do no good : it is 
 enough to carry them in, after the damages have been assessed accord- 
 ing to law and paid : but no more. If this section were not in the act, 
 the whole is good for nothing ; not worth one single farthing ; and vests 
 no sort of estate in them, in expectancy or possession : if he say no. It 
 says: “That when application for a Jury shall be made to the court 
 (that nor no other court can get in a Jury before the report of the com- 
 mittee, for the statute itself tells when) to estimate the damages for lands 
 taken as aforesaid, the court shall, if requested by the owners thereof’ 
 require the said railroad company to give security to the satisfaction of 
 said court, for the payment of such damages, as shall have been assessed 
 by said road committee, or as probably may be assessed by the Jury, for 
 the land as aforesaid, and all the right or authority of said corporation 
 to enter upon or use said lands except for making surveys, shall be 
 suspended until they shall give such security.” Well : is there any man 
 in New-Hampshire such a fool as not to see that this statute, however 
 all the courts about interpret it, ought to be interpreted to vest no estate 
 in the corporation against the owner till all these requisitions have been 
 fulfilled : for then it is a lawful statute ! It has told the corporation how 
 to get the owner’s Jury and when; but as the courts interpret it, it is 
 good for nothing again : they say it means to force the corporation to 
 pay him by keeping them from using their railway two or three years 
 after : for the credit of the State I shall believe no such thing. 1 will 
 make their statutes lawful if I can. That with such law as is promul- 
 gated by our courts ringing in their ears, the General Court should think 
 it could make any body take security to the satisfaction of the court of 
 common pleas (!) for such damages as may probably (!) be assessed by a 
 Jury for his freehold, is not remarkable ; when our High Court of Chan- 
 cery thinks it can make him take “ security to their satisfaction” for it, 
 or theirs and their clerk’s, without the Jury or the General Court’s 
 troubling themselves about it. But even the statute, interpreted accord- 
 ing to law, does not force him to take this till the court of common pleas 
 get the report of the committee. It did not mean to give the court of 
 common pleas authority to devest him by witnesses sent out for of its 
 own power, and roped into court by a catchpoll. This statute can be 
 interpreted in accordance with the law of the land. It names the time 
 when the Jury shall act; and can be interpreted to say clearly that the 
 vesting the estate in the railway shall depend on the assurance of the 
 damages’ being assessed according to l&w and paid : or it so nearly 
 does so as to be more than is common creditable to the General Court. 
 If I know any thing of the New-Hampshire statute-book, they hit ten 
 times nearer the mark this time, than they do in more than one shot out 
 of a hundred. I consequently hold : That even by the statutes that 
 incorporated them: Till lawful notice was given by the committee 
 
23 
 
 appointed by the first court of common pleas and they had reported to 
 the next ; Till security was given to the satisfaction of this court with 
 the report of the committee before it ; and beyond all this, after com- 
 plying with their acts ot incorporation, on which rests their franchise ; 
 Till the damages were assessed by a Jury and paid : This corporation’s 
 franchise (and none of it had been done when the injunction was asked 
 for) gave it no right to build a railway in any body’s land that chose to 
 object to their doing it. Their loss of time or the publick’s,is no concern 
 of the owner’s in a court of law or equity. If the State choose to exe- 
 cute projects, to a certain degree of a pub! ick nature, through other ways 
 than the straight one, to get rid of trouble and responsibility herself; 
 through indirect agents and not direct ones : so far as her responsibility 
 is taken away ; so far is the power she can give to them. So far as the 
 delay, inconvenience and costare increased, she is assumed in a court 
 of law or equity to know the public good, to grant these charters for it ; 
 and to foresee the whole : the railway, the court of common pleas, have 
 no right to put in their oar to do more than is in her statutes : and a 
 court of equity’s undertaking to interfere and sell the land of one of her 
 subjects to another against his will, at. a price fixed by them, filing bonds 
 and counting money for it, discovers either an ignorance or fatuity on 
 their own part, when no statute tells them to, or a hope of the same on 
 the part ot the publick, absolutely unexampled. 
 
 Hear the decision of the Lord Chancellor: “If there be important 
 conflicting rights, betwixt these parties, involving questions of doubt 
 and difficulty there is not sufficient ground for an injunction until such 
 rights can be settled on full hearing and investigation, the party apply- 
 ing for such process, must either show very clear right on his side, or 
 with a probability of right he must show that if his adversary be in the 
 wrong and be not restrained, very great, and perhaps irremediable injury 
 may ensue.” There are no less than four astounding doctrines here pro- 
 mulgated by a Lord Chancellor, now engaged in marking the bounds of 
 the most important power known almost to the law, in direct contradic- 
 tion to the fundamental principles of a court of chancery: the previously 
 undisputed right of the owner no court of equity can consider doubtful 
 till the new one be established to be lawful : and an injunction must be 
 granted till full hearing and investigation, if the injury be of sufficient 
 consequence, or till the right of the new aggressor be determined by a 
 court of common law : neither has a court of equity power to interpret 
 statutes but by the strictest precedents and principles of the common 
 law: neither has it a right to take into consideration the doubtfulness 
 of the right and the doubtfulness of the injury associated together to 
 strengthen each other : if the railway’s right were only probable, and 
 the improbability of the other fested on nothing but the probability of 
 that, the injunction must issue till theirs be established : if sufficient in- 
 jury be proved to be taking place. The last is a question wholly separ- 
 ate from the first. No court of equity is at liberty to jumble them to- 
 gether : on the first it must tell the owner it will resist the aggression 
 and do it by the whole power of their court, or it must fairly tell him 
 
24 
 
 that it will not, because the aggressors have no right; and lie must drive 
 them off himself, or demand the assistance of the common law to do it. 
 The other reason should be stated singly : and was the sole excuse for 
 their not instantly issuing the injunction upon the very statement they 
 make of what the question was themselves. An injunction is however, 
 issued now, very liberally in this respect, and is getting to be, what it 
 really is, we shall see by and by, a sort of common law remedy, to deny 
 which a Lord Chancellor is meant to have very little discretion. The 
 precedent was of vital importance : it was the first under these statutes, 
 which will be so common, it was the commencement of the jurisdiction 
 our High Court of Chancery is establishing : fifty people either petition- 
 ed on the same grounds, or were going to if this were obtained : and it 
 will be seen that the court must have known, that every body else would 
 know what this long story meant about filing bonds, and silver and gold 
 in their clerk’s hand : That the railway meant to get their sanction to an 
 irregular proceeding of the gravest nature, of a very different description 
 from what I have hitherto examined ; and were in fact making use of 
 the State’s high prerogative to devest her subjects without any charter 
 at all. 
 
 If any thing could show clearer than another the carelessness and 
 disregard of the law which has so long reigned in the interpretation of 
 her statutes, and in New-Hampshire’s courts has so long triumphed 
 without resistance, and the hopelessness of setting it right : it is that the 
 petitioner’s counsel, fori judge from the opinion of the court that it 
 was not in it, should not have laid this before the court. I suppose he 
 thought it would have been of no use if he had. But, as far as I can 
 learn, it was not necessary for him, on English precedents, to do it. 
 Though the act of their incorporation be a private act, the nature of it 
 is still so publick that, when it is once before him, a chancellor is assum- 
 ed to know it thoroughly and to make himself certain that the rights, 
 which rest on nothing else, do subsist. If he had stooped to do this, he 
 must have found all doubts as to his course removed and either issued 
 his iryunction or told the petitioner that he had another remedy without 
 coming fo him : for the railway had no shadow of right then, nor till the 
 next year, did they or could they get one, in his land ; for they deliber- 
 ately acknowledged, and he had nothing to do but put the engineer on 
 his oath to prove he was ordered to do it, a Chancellor has power to do 
 it instantly in court to satisfy himself, that they meant to break the statute 
 which incorporated them. Let me examine this strange proceeding. 
 
 Before I forget it however I will say that there was one redeeming 
 circumstance about this opinion : and that is that the court had sense 
 enough not to tell the world one thing they went on : and that was 
 originally express or constructive assent of the owner. No court of 
 equity could be suffered to remain among us that took up such a creed : 
 so dangerous in nature and so bad in law : under these circumstances 
 from various reasons. There were no contracts made in consequence 
 of his assent : for every body else was waiting to petition too. How 
 could his assent bind him and how' was it proved ? It could not bind 
 
25 
 
 him if they had no act at common law : it could not bind him in a court 
 of equity, if they had, if he acted from such threats as these people are 
 known to have made: not if he made a deliberate conveyance Was 
 it proved by the corporation’s agents or his not resisting a hundred la- 
 bourers ? Was an estate devested by affidavit of the opposite party as 
 to a disputed fact? It was devested by the single affidavit of the land- 
 agent of the corporation. The refusing this injunction, here, with this 
 opinion tagged to it, as completely devested him, for all practical purpo- 
 ses for such people as him, as the same Chancellor’s court of common 
 law could have done it. Such a doctrine does not even accord with 
 what fell from a New-York chancellor on it: and the best of it is that he 
 says the estate vests when the money is paid according to the statute. 
 Such a doctrine would indeed open the door to oppression, circumven- 
 tion and swindling wider than ever: determining that the nonresis- 
 tance of an ignorant, humble farmer, was irrevocable assent to devest 
 him of his estate, exposed to the threats and arts of their agents, and 
 overwhelmed by the reputation of the counsel of one of these gigantick 
 corporations. Whether the court had power to determine any thing 
 about it, on a simple petition for an injunction, I should very much doubt. 
 There is a court of common law and a Jury to determine whether the 
 right of these corporations is established : and a court of equity is to see 
 that the owner is protected it till it be : or tell him how he can be. Tell 
 their whole doctrine to the shade of old club-foot Bell; publish it in 
 Westminster Hall ; I should wink as I looked to see shaking the mane 
 and tail of the graved lion on the Great Seals, and tremble for his roar as 
 he sprang on the jackass. These chancellors are now establishing, by 
 precedent, what their power is. They are fond of dealing in bonds 
 without being told to : is there any bond filed to secure the different 
 subjects of the State, for they are the publick, that the General Court 
 will not be swindled out of still more unlawful acts; and a High Court 
 of Chancery stand ready to interpret them and uphold these corpora- 
 tions in a still more unlawful way ? 
 
 Now as to this charter: it is not necessary to bring forward Mr. Chief 
 Justice Marshall or all other great lawyers to establish that this corpora- 
 tion must find all its powers in its acts of incorporation; for it is an 
 axiom of the common law: and one which a court of equity must obey. 
 He says of such a corporation : “ It may correctly be said to be precisely 
 what the incorporating act makes it; to derive all its powers from that 
 act; and to be capable of exerting its faculties only in the manner which 
 that act authorizes.” Neither need I look up authorities to show that 
 this axiom has had paid to it by the courts of England, the very paradise 
 of statute property, the deepest submission : a submission which looks 
 excessive to us, till experience shows us the impossibility, in practice, of 
 substituting another doctrine for it: and till we remember that as, by a 
 fiction of law, all corporations are established for the publick good, the 
 law goes on to assume that if the same publick good require a change, 
 the State will always make it. The adjusting statutes, of his own author- 
 ity, to meet the wishes of those to whom the franchise is given, and 
 
 4 
 
supplying their deficiencies, is a power the Lord Chancellor or the 
 Master of' the Rolls has not yet arrogated to himself. The notion that a 
 private corporation and a court, together can make us take, “the common 
 law remedy against trespassers”, or, a likelihood of our damages’ being 
 assessed and paid for the damages themselves is going a good way here: 
 hut the notion that they can make us take the likelihood of a statute’s 
 being made at some future day, for the statute itselfj has not yet been 
 broached where her majesty keeps her Great Seals: the lion’s mane 
 would rise once more. Can this corporation take land against its own- 
 er’s will, if it comply with the law in every thing else, except where the 
 State tells it to in its charter? lias it a right to do it, because it says it 
 has reason to know that another charter to that effect will be by and by 
 given ? Against rights secured by laws now in force ? Before the act 
 is made or considered of by the people they say are going to make it ? 
 Has the sheriff a right to hang a man before he is tried, because he says 
 he knows he will he and found guilty ? How is a court of equity or the 
 corporation to know they will make such an act? Does the General 
 Court give “security to their satisfaction” that it “probably” will ? Do 
 they know it a year beforehand ? Did any body ever know what the 
 General Court would do a day beforehand ? Did they ever know them- 
 selves? This is carrying out the “ bond” system pretty well: Tick for 
 the statute ; tick for the court of common pleas; tick for the Jury; tick 
 for the verdict; and tick for his money: Every tiling else but the 
 owner gets tick ; hut no tick gets he : his land is taken ; his house pulled 
 down and a locomotive run where it stood : This is the first step in the 
 process to get the act of incorporation, and make inhuman its refusal; 
 as we shall see. The owner’s right till the statute was produced was 
 indisputable : as the railway’s whole right was, as far as charter went, 
 the gift of this statute : the Lord Chancellor of course read the statute 
 and understood it: their adverse right was shown by investigation to be 
 complete ; or else he told the owner where to get protected : or else the 
 railway’s right to take his land without a charter was made clear to him. 
 I have ventured a little way into the labyrinth of the law but not far 
 enough to get hold of the right thread of precedent for a Lord Chancel- 
 lor’s going on tick for a statute. 
 
 One would have supposed, on superficial consideration, that the rigour 
 of the common law would have relaxed with the enormous increase of 
 this sort of corporations and of people interested in them in England : 
 or that the growth of more liberal principles, so called, would have 
 given to parliament’s interference with private rights on their account, 
 a wider range. But the decisions shew a very different public opinion, 
 as well as law, concerning them from that of our court’s. We have seen 
 what the Chief Justice of the Court of King’s Bench called them: and 
 he went so far as to determine that a canal could take no toll from the 
 chief part of the boats conveying merchandise on it: because the stat- 
 ute gave them no right to take it but at a place where they did not want 
 to go. John Bull would keep no such law as to interpreting statutes 
 a going, did he not know its use to protect the publick against them and 
 
27 
 
 them from each other. The ablest chancellor since Lord Hardwicke 
 says that he will use his utmost power of his court to protect private 
 property against any acts of these corporations, beyond the strictest 
 interpretation of their statutes : that he can listen to no pleas of expedi- 
 ency nor compassion from them : they must wait for another act. Let 
 us see what Lord Eldon does say about deviating from the course set 
 forth in the act; the interpretation of such statutes; and the obligation 
 of his court of equity to protect private persons against their wandering 
 about at their own pleasure. He confirms Lord Tenterden’s doctrine ; 
 it was again supported by Lord Lyndhust,on an appeal to the Lords, and 
 it was confirmed by them. Neither of the two Tory chancellors had 
 found out, what our moneyed interest upholds, that the property of the 
 subject should be left to the mercy of careless making, or executing laws, 
 and a free interpretation of statutes. Well: hear Lord Eldon: “ I fol- 
 low and adopt the expression of the Lord Chief Justice of the King’s 
 Bench, and 1 am glad to fasten myself in some measure on his great 
 authority, and say that, when 1 look upon these acts of parliament, I 
 regard them all in the light of contracts(!) made by the legislature, on be- 
 half of every(!) person interested in any thing to be done under them; 
 and 1 have no hesitation in asserting that, unless that principle is applied 
 in construing statutes of this description, they become instruments of 
 greater oppression than any thing in the whole system of administra- 
 tion under our constitution. Such acts of parliament have now become 
 extremely numerous; and from their number and operation they so 
 much affect individuals, that 1 apprehend those who come for them to 
 parliament, do, in effect, undertake that they shall do and submit to 
 whateverf!) the legislature empowers and compels them to do; and that 
 they shall do nothing else:(!) that they shall do and forbear all that they 
 are thereby required to do and forbear, as well with reference to the 
 interest of the publick as with reference to those of individuals.”(!) He 
 then denies the right of one of these corporations to go to(!) an owner’s 
 land, though they may have right to take it against his will, by any(!) other 
 track than the one fixed by law: though it may be a thing of complete 
 indifference^) to his interest which way they come. That he says is his(!) 
 business to judge of not the corporation’s nor the chancellor’s. They 
 can take nothing but in the way, and where, set forth by the statute. 
 He also says : without asking the owner to make out, as the Lord Chan- 
 cellor of New-Hampshire does, the immediate certainty of immense and 
 irreparable injury : “I have therefore stated, and 1 have already more 
 than once acted(!) upon the doctrine, that if a deviation from the line 
 marked out by parliament were attempted, I would (unless the House 
 of Lords were to correct me) stop(!) the further making of a canal now in 
 progress ; and for this reason, that a man may have a great objection to 
 •a canal being made in one line, which he would not have to its being 
 made in another ; and particularly, he might feel that objection in a case 
 where parties, after obtaining from the legislature leave to do one thing 
 set about doing another. It may, I admit, be of no greater(!) mischief to 
 one owner, that the canal should come through the lands of this person 
 
or that person; but to that my answer is, that you have bargained (!) with 
 the legislature, that you shall do the act they have authorised you to do 
 and no(!) other act.” He then refuses to let them spend more money than 
 was at first expected, to widen or deepen their canal, as it might injure 
 individuals more titan was given them a right to by their act, a quarter 
 of a century before ; and says ; if they can get out of their straitest 
 limits a' al! : “ What is to hinder them from carrying it from sea to sea? 
 Why, there would be no end of it: They are not at liberty afterwards 
 to injure the interests of parties bv making what is quite a different 
 canal and again : “If consequences were to be produced by an alter- 
 ation and improvement in the canal : still, I say, if the alteration be not 
 sanctioned by parliament (!), you are not to bring about the same(!) con- 
 sequences by means other (!) than those which the act of parliament 
 authorises (1 do not hear yet about the irreparable injury: “very great, 
 and perhaps irremediable I believe, on my soul almost, that our court 
 thinks, that when they are a court of equity, they are no longer obliged 
 to find out what privileges statutes give, interpreted by the prece- 
 dents and principles of common law : and that when “ a bond is 
 filed” to the “ probable” value of a subject’s house, no court of equity 
 has right to think another should not pull it. down: not because there 
 are other ways to keep him from doing it ; but because as he means to 
 pay for it, it is no longer in the eye of a court of equity : “ very great and 
 perhaps irremediable injury”). The result amounts to no more that] 
 this, that if you are doing an act which is conformable to the provisions 
 of the act of parliament, the consequences, bo they what they may, are 
 produced by the act of parliament, and not by you ; but, if lam right in 
 point of law, you would not be at liberty to change these opeiations, for 
 the purpose of producing the same(!) effect, without the authotity of an- 
 other (!) act of parliament. (Can any body read this opinion without 
 seeing that this great Chancellor considers himself oidy at liberty to 
 inquire the right of such a corporation in the owner’s land : and that the 
 injury’s being reparable by money his court has no concern with : that 
 the simple question bis court of equity is to look to, is whether the cor- 
 poration has any business there at common law? If they have none he 
 must drive them off and keep them off by the full power of his court. 
 “ The important conflicting rights, involving questions of doubt and 
 difficulty” : are to work against the railway; not the owner. “Any 
 ambiguity (!) of the terms of the contract (the act of incorporation) must 
 operate against (!) the company of adventurers (the corporation) and in 
 favour of the publick (the owners of the land) (!):” says the court of 
 King’s Bench : in the case referred to before).” It certainly looks to 
 me, that the sheet-anchor of the party that held up England through her 
 long desperate struggle with revolutionary doctrines in the bloom of 
 their youth, has not only a more democratick, hut a more far-sighted and 
 safer notion of what the law should be as well as is, with respect to 
 these things, than our High Court of Chancery. He sees that the lane 
 may have a turning. He seems to be speaking to this very question ; 
 and is an overwhelming authority in any court of equity or of common 
 
29 
 
 law; for lie was master of all : tick for a statute was not in old Eldon’s 
 way. It is not the effusion of a captious jacobin ; but the Lord Chan- 
 cellor of England for nearly thirty years: as good a lawyer as ever 
 lived; master of the principles of modern industry ; skilled in the prop- 
 erties of money ; and worth one million of pounds sterling that he had 
 made himself: that is speaking here about the rights of these corpora- 
 tions. To be sure: it lies not with a court of equity to go round meas-> 
 uring, when it is not clear, by their own account, that the aggressor has 
 any right there at all, what the precise extent of the injury is the owner 
 is going to receive : and file bonds and court gold that the aggressor 
 pledges to get a court of equity’s leave to continue his aggression. But 
 Eldon says still more distinctly in another case, that the nature of these 
 corporations is strictly that of private interests: this one’s act of incor- 
 poration, by the way, was a publick act. All their courts say, nearly in 
 plain words, that the publick good’s creating these corporations, parlia- 
 ment that makes them and the Crown whose assent they must receive, 
 clearly hold the same doctrine, is a fiction of law: for equity has inter- 
 fered to decree a specific!? performance of agreements with individuals 
 or each other, not to oppose their acts of incorporation is parliament. 
 Agreements with a member of parliament are one thing: but this; 
 agreements not to oppose by persons who are interested in such acts 
 (as against their opposition parliament should not, in justice, make them, 
 usually), are equitable agreements, and ought to be enforced: else par- 
 liament wilfully destroys an estate, and then leaves its former possessor 
 to be reimbursed by an action at law, like our Lord Chancellor’s sage 
 theory, when possibly the aggressor cannot pay for it, and, like enough, 
 the estate destroyed afforded its owner the only means he had in the 
 world to carry on the suit. It shows not corruption of the legislative 
 power ; but its own anxiety to do justice to all the subjects of the Crown: 
 That England has found, by boundless experience, that she must hold 
 them, even for their own sake, to be simple private interests, and all 
 their agreements, rights and suits to be the same : this ; when it is the 
 condition of their bargain with the owners or each other that they shall 
 get through the House of Commons and the House of Lords: and 
 their acts of incorporation, as private interests, shall receive the assent 
 of the Crown : which, by their law, is assumed to do no wrong : That 
 they shall be coolly enacted. John Bull stands no such gammon aBout 
 publicfcgood : he knows them of old. That a canal, railway or whatever 
 else of this sort, gets all its right to go any wherefrom the strictest inter- 
 pretation of the statute : is their common law. Our courts hold; from 
 the silver and gold they put in the clerk’s hand : and the bonds they file. 
 I do not gather however that the clerk touched any of the metal ; or had 
 it clinked in his ears: but the whole court swears the railway was ready 
 to clink it : Tick again. I go with Tenterden and*Eldon for the act ; 
 the whole act : and nothing but the act : comma for comma. But ; be- 
 fore ; how could 1 forget such authority as theirs? Did not Mr. Justice 
 Marcus Morton and Mr. Justice Samuel Wilde, those great lawyers, 
 thinking as Ido, and thoroughly penetrated with the spirit of the com- 
 
3o 
 
 mon law of the land of our fathers ; the very genius of Westminster 
 Hall seemed to speak (I thought, as I read their opinious, a dream took 
 me: my head was dizzy with the majestick gloom of the immense vault 
 of Westminster Hall and filled with the glories of the Conqueror Wil- 
 liam and his Norman line ; I saw its first walls rise in the meadow, the 
 monument of the Norman and the work of the Saxon, with Emerys or 
 Cumings making Kendricks, Goodwins, Siwards or Elwyns heap up 
 the great stones; the fame of our Edwards and our Henrys rang in my 
 ears ; I saw Bolingbroke enthrone himself: again ; the gray light of the 
 same old Hall fell on the lofty foreheads and set lips of sixty-six steady, 
 silent men, on scarlet benches, with a Puritan in scarlet, with a mace 
 and sword, and the Martyr in a chair; again; a Feudal vision passed 
 before my eyes, 1 saw before another king, the gorgeous phantoms of 
 the long rows of his great vassals, from the forth of Scotland to the pale 
 of Ireland, from Normandy and Aquitaine, from Anjou and Touraine : 
 1 lifted the curtain and found myself in the awful presence of the crown ; 
 supposed to be always present in her court of common law; as Judge 
 Parker says my sovereign, the people of New-Hampshire, is in his rail- 
 way, when it pulls down my barn : Morton and Wilde gave me the 
 whole dream : I mistook Tresilian, who hung nineteen on the same gal- 
 lows for rebellion, for Wilde; and Bradshaw, the Puritan in scarlet with 
 the mace and sword, who was goig to cut off a king’s head, for Morton : 
 at first); did not these learned men hold: “That the Charles River 
 Bridge had no right to an inch nor a pennyworth of land, water nor toll, 
 to the left nor to the right of just the right length of the best quality of 
 Bangor boards : straight as an arrow from one point to the other ; the 
 two termini clearly set forth in the act” ? Can any body sustain an 
 opinion in law against the authority of Tenterden and Eldon there ? 
 That of Marcus Morton and Samuel Wilde here ? The thing is clear. 
 
 The most untoward event which could have befallen the embryo sys- 
 tem of equity jurisprudence, not yet ready for the light, forming itself in 
 the breast of the court of chancery, New-Hampshire had just established 
 by statute, was to hurry it into premature birth : still more, that the first 
 obligation of this court to determine such momentous questions should 
 have been in respect of this railway. As a matter of course in Ports- 
 mouth, a quarrel was got up, with the first project of it some years be- 
 fore, about where it should go : such quarrels have usually a lasting 
 vitality. The first projectors of it, did at last fix it by law to run *from a 
 point, supposed to be known, on the Massachusetts frontier, that is in 
 fact, from the same bridge on which the river Merrimack is crossed now, 
 to the Universalist Church in the village of Portsmouth. This course 
 was uncommonly direct : unfortunately, from that reason, it could not 
 get out of the way of a barren tract of gravel, sand, swamp and marsh, 
 two or three miles south of the village, not worth five farthings the acre: 
 belonging to me. This interesting circumstance to the human race, of 
 course, has been always brought forward to account for my saying they 
 were breaking the law : what it had to do with the fact of their breaking 
 the law is the court’s concern : not mine. As, when attacked for stand- 
 
31 
 
 ing in people’s way who mean to do wrong, to argue the question and 
 prove yourself in the right, is to exaggerate the cause of the quarrel: the 
 outcry may shift for itself. I advocated its going a mile or more still 
 farther East : however. The first outcry, every body knew came from 
 chagrin at my interrupting a certain leaning toward fraudulent surveys ; 
 a constitutional tendency to which I have found astonishingly rooted in 
 all these corporations for the publick good : “ veteres inimicitiee incita- 
 bant et dolor repulsee.” All this is immaterial: it could not have affected 
 the oracles, delivered by the supernatural wisdom of our Delphoi. The 
 first project, six years ago, was too soon : then came the disastrous days 
 consequent upon President Jackson’s leaving his country to her unassis- 
 ted destinies. Nothing was done after Diocletian left us, or while he 
 was talking of going, but accept the charter : its whole course, fixed, 
 inch for inch, by law : as it always should be. Another railway cut in 
 above: so things stood four years. All at once, what they had said they 
 never would do, which led to building the poor other railway above in 
 the interval, the railway of Massachusetts : finding, I suppose, some stray 
 coins left in their purses, which had escaped the mysterious power of 
 transferring property, with which not even the wand of NewHampshire’s 
 GeneralCourt is so highly gifted as that of a Philadelphian publick bene- 
 factor, the “ odour of whose nationality” impregnates the world with its 
 sweet scent, so creditable to his nation; suddenly made up its mind, not 
 only to attempt the distant banks of the Merrimack; but, all at once, just 
 before the General Court got together, to roll, right off like Pindar’s di- 
 thyrambicks, their cars through the Boeotian fields of the Piscataqua : 
 and they must make a burst instantly : they had waited two hundred 
 years and now they could not wait five minutes. They were fools 
 enough to suppose they were obliged to use our charter : whereas, if 
 they had only asked our court of equity, it would have told them that any 
 other would have answered just as well : though chartered for another 
 track : they, of course, cared not a copper about the Portsmouth feud : 
 for there was no reason why they should. They got into the hands of 
 the people who had tried to carry the railway out of the way, four years 
 before, for reasons right enough if the railway be a private interest : as I 
 say it is in law : and against whose interference it was purposely fixed 
 by the corporation where it was. At the General Court ; rose from the 
 earth and hovered awhile over the quaking senate-house, then dived into 
 the lobby, an endless spectre, commanding the General Court to instant- 
 ly give it a new charter for a railway wherever it pleased to go. It has 
 always filled me with astonishment that every body does not see more 
 plainly the impossibility of an honest legislature’s granting these high 
 powers without letting every body know they are going to, or knowing 
 themselves where they are to be used. Such a caprice of despotism is 
 absolutely unknown in the old world : and every honest politician, dem- 
 ocrat or no, must oppose it. The General Court, though disturbed by 
 the avatara of Vishnoo, and against his numerous friends, that is the 
 whole whig part of it, would not listen to his behest : the directors of 
 the corporation, I am told, had refused him authority to make it: they 
 
32 
 
 asked for a map of his projected course : where he wanted his charter ? 
 “ The irresistible pressure of the publick good, in whose behalf I now 
 appear,” returned the spectre, “ has kept me from getting surveys taken 
 yet: I do not know where I shall go with a railway: but -fiie present 
 charter crosses a certain creek, my subordinates report impracticable, a 
 rod and a half wide, with a gulph of salt-meadow to it, of ten :” No sur- 
 vey had been taken or was produced : but they were going to take one : 
 tick as before. The creek, which there was no difficulty of crossing of 
 course, the story being merely got up for the purpose, was picked out 
 because they supposed 1 should be kept from opposing an unstinted, 
 charter, by letters to the General Court warning them, that if they refused 
 such, every body would suppose that it was because they set at naught 
 the publick good to give me the satisfaction of having locomotives run 
 through my field : the creek being in the extreme corner of the tract 
 above-named. I never troubled myself about this: but wanted to get 
 them off the ground, of course. They had permission to alter their 
 course in detail : a change of a few rods, they said, was indispensable : 
 the rest would do well enough : To alter their course to the ending- 
 place in gross, the General Court expressly refused : for they had seen 
 no survey; and let nobody know they were going to : the two termini 
 remained fixed by law as before. This is not disputed: for the most 
 shocking anathemas were launched at the General Court about it: 
 They must all go, they said, and their railway with them forever, to the 
 Universalist Church ; the Author of Evil was conjured into and safely 
 corked up by the Portsmouth democrats in an act of the New-Hamp- 
 shire General Court. They were now incorporated to go from the point 
 on the frontier of the State, rather in fact from the bridge in Newbury, 
 to the Universalist church in the village of Portsmouth : not an inch far- 
 ther: with reasonable directness, but still nowhere but to this Church 
 as straight as else might be. No matter why: I am not keeper of the 
 General Court’s conscience; neither is the Lord Chancellor: he only 
 keeps the sovereign’s : and hers has nothing to do with these private acts, 
 as Eldon says, who ought to know, for he kept two of them for a great 
 many years. I in no way blame the railway for wanting to go where 
 best suited the private interests of some people : for I hold, as he does, 
 the whole franchise to be a private interest : 1 blame them, and he says 
 he would stop them, for not waiting for another charter, which nobody 
 would have opposed, after the survey of their projected course was be- 
 fore the legislative power. There was no hurry, of course, for only the 
 parts of the railway, that were farthest off from the limits of the charter, 
 were done, when the General Court met the next year. It is well 
 enough to say that any new act at all was violently opposed in the Gen- 
 eral Court by people of their own motion, they can tell whether they 
 did it at mine : and oidy carried with the engagement, of those that 
 asked for it, that the railway should not be put just in the place where 
 they immediately proceeded to put it. This was the condition, or as 
 Eldon would say bargain, without which they would never have got 
 their franchise : it was known to every body ; the lobby was damp from 
 
33 
 
 the tears on its floor : it Was as well known to the courts as every body 
 else. This is not material and does not strengthen the obligation of the 
 Lord Chancellor to read the statute that was held up to his eyes : which 
 he determined gave them right to take land against the owner’s will, 
 without paying for it, where their creator, the General Court, told them 
 they should not go at all, in one part of his book : and in another, that 
 it was a question of such “ doubt and difficulty,” that he could not tell 
 whether it did or no : and therefore, he says, it did. No General Court 
 could, without disgrace, have given the charter they asked for : which 
 was to have no stint whatever. I gravely recommend, however, our 
 High Court of Chancery to resume, to find out what sort of a thing a 
 statute is, their investigation of the great case of Fletcher versus Peck : 
 as it bears on such momentous and complicated questions. This corpo- 
 ration’s franchise was the State’s alone to give : why she gave it is no 
 concern of our court of equity : whether she gave it and what she has 
 to give and what she gave : is what that is to look to. In a court of 
 equity, says Mr. Ballow : “ Let a man be wise, therefore, or unwise, if 
 he be legally compos mentis, he is a disposer of his property, and his 
 will stands instead of a reason.” New-Hampshire is not the ward of 
 her own court of chancery: and says our own Papin ian : “It is the 
 duty of every court of equity to consult the intention of the legislature, 
 and in the discharge of this duty, a court of equity is not invested with 
 a larger or a more liberal direction than a court of law.” These are, 1 
 believe, his words. 
 
 It is not disputed that the General Court refused them a charter to go 
 where they went. No matter why : that is the State’s business : she 
 knows the publi(§£ood. Under the power given to deviate from the 
 course, originally fixed by law from one terminus to the other, intended 
 merely to enable them to avoid the trifling obstructions found to its ex- 
 act execution, they gravely were counselled to go where they wanted, 
 from the first, to get a charter ; but could not : told that nobody would 
 molest them ; knowing that they were better able to carry on a war of 
 law than any that was like to take account of their breaking a law : de- 
 liberately building their railway without any act of incorporation where, 
 they were building it : beginning at the farthest point (and the most ex- 
 pensive place of purpose) from the track fixed by law, and hurrying it 
 with, there, the utmost speed : to accumulate the largest stores of ammu- 
 nition, by getting the most money expended, with which to batter the 
 next year the compassion of the General Court into a charter for a rail- 
 way where it stood built without already. This explains the court’s long 
 story about filing the bonds and the silver and gold. '! he real owners 
 of the corporation, like enough, knew nothing of the risk they were run- 
 ning : others were told of it : for had a real wish subsisted to rob the in- 
 nocent stockholders ; their charter might have been repealed : or rather 
 the subsequent one denied. These said they were running no risk: the 
 General Court could not have the face to refuse: if they did; they would 
 take to our courts of law and equity. The attempting to jockey such a 
 sworn visitor and lynx-eyed overseer of private corporations as our Gen- 
 
34 
 
 eral Court, was not such a burlesque as completely succeeding. Well : 
 
 I would say nothing about this railway itself: but they involved so many 
 questions of our law and the system of equity vve are making by prece- 
 dent : and our court of it. in heir behalf' in rushing to their assistance 
 knock down so much more law and equity both, than there was any call (ff 
 to help them out; butting at law, that never stood in their way: play- 
 ing the hull in the china-shop, in this sense to be sure ; for the true 
 excuse for refusing a special injunction forthwith, was that the adjuncts 
 of the fact did not reach to a court of chancery’s instantly interfering, 
 and that the purpose, in which the publick took an interest, of getting the 
 law out of them, could not be gratified precipitately in an oblique way ; 
 but had better be done by a Trial at common law : having, I say, over- 
 looked a rational defence, to go out of their way, to promulgate what is 
 neither law, equity nor common sense : that some of the farce at the 
 end may as well come in. Soon after the General Court got up and 
 went home, I was told by a gentleman living two or three miles offj that 
 lie and his people were confounded, when they got up at the first streak 
 of light of a mid-summer morning, so that they gathered and stood still 
 in the doorway, with an inexplicable, low, confused murmur, but of very 
 shrill notes, never heard there before, which seemed to come from un- 
 der the vapour, common here at that season, resting on a meadow before 
 his door. After this vapour rose from the earth an hour or two after, 
 it left behind it, filling his field, to the amazement of himself and the 
 rest, staggering at such an unexpected vision ; an unknown horde, com- 
 posed of men, women and children, red, white and gray: from whence 
 they came he knew not : how nor when : except that none such was 
 there the evening before. The horde seemed to be jjbrpetually talking 
 among themselves, but a language unknown to him : what they wanted, 
 of course, he could not find out : but there they were, encamped and 
 hutted, in one night, in great force on his ground : and as far as he 
 could judge from their proceedings, having no means of communicat- 
 ing by words, they were going to blow up a rock, about forty rods through, 
 on which stood his house : and his house with it. I could not tell him 
 what it meant. It could not be the railway’s Irish : that ran through an- 
 other part of the country. 1 found however it was the Eastern railway 
 corporation travelling on their way to the Church, which is in the South- 
 ern part of the village, by the way of Portsmouth bridge which is some 
 way up the river, above the extreme North of it: this bridge they swore 
 they meant to seize as private property (they being the true agents or 
 assignees of the State’s power, not the other highway : our courts see 
 the distinction of course): into the State of Maine. After they had rid- 
 den into the State of Maine atop of this bridge (they had as good 
 right to it, they said, as any thing they had took already : and so 
 they had) ; they were going to ride atop of it back into New-Hamp- 
 shire again : and if any body wanted them to, through the whole 
 length of the streets of Portsmouth, to the church at the other end : 
 the terminus fixed by law: having gone out of the way, then, sev- 
 eral miles out of some fifteen of level country, or thereabout, to the 
 
Church. This Iasi is net material : the}' did now put it on the ground 
 of <ii, ic;Ky of accomplishing; vvh.it: the act told them to : of which they 
 hud no survey, k v.Vui intimated (This is the substance cl lha argument: 
 
 1 am not attacking tv, a cc: poivvdon or their agent- ; i only wish to have, 
 what our court of equity thinks law, well understood, that the;/ may not 
 )ui led a| then >rati ns) j 
 
 4 ' Your act of incorpor ation does not tell you to .vo to the Church by the 
 way of Winnipisauky and back • Damn the act: vou put that in, some 
 of you: we will go where we please s” “ hut ;” it was said : 54 Any body 
 can take advantage of you, you cannot obstruct the highways of the 
 State: you will heat every body’s mercy wherever you go:” “.Damn the 
 State : we will make the General Court give us another act to build it 
 there, then, after it is built ; they cannot refuse it after we have spent 
 four hundred thousand dollars on it ; owe for the damages; and have 
 been carrying passengers over it six months: why, cur creditors that 
 lent us the money to build it with, and the owners of the railway, that 
 do not know they are in danger, would keep off that : the pufoliek will 
 be impatient to use the mb way : it would be an outrage to them and in- 
 human to ail to refuse a charter to a rod way that is built : if we wait till 
 we get the charter, you wd: give 11s the same cursed trouble you did be- 
 fore : the only way to be rwro of a charter where you want it, is to build 
 your railway there first : we have the ablest counsel (so they had) : the 
 courts are with us (so they were too) : if one of those farmers you are 
 setting on us, bo bol enough to try it, we will show him what it is to 
 take hold of a corporation, pledged to effect schemes to near five millions 
 of dollars already, in a suit at law : we will bring an action against him 
 for the loss of time or 1 the whole railway: we can ruin every one of them 
 without minding: it : he cannot last out a lawsuit with us: if he stop us 
 now by a proceeding in equity ; we will get a decree in chancery next 
 year against him (this law, one would suppose, mar t have come from 
 nobody but the court itself; this and 44 trespassers ab initio” are twins); 
 and make him pay us for keeping us from carrying passengers, the nine 
 months here, before we get our charter.” Such luminous views of the 
 law of the land, and so sound, were taken no peremptory exception to : 
 the gentleman above-named asked the Chief Justice to stop them : till 
 the thing could be argued he instantly did. His house was a right angle 
 to the Church : the farthest and most expensive part of the whole track, 
 picked out of purpose to attack the General Court’s humanity next year. 
 They were not then sure of the law : they would have rather paid him, 
 twice over, lor his three hundred acres, ihan be stopped there: and every 
 body else they feared would take the lield: they called from every quar- 
 ter whatever could bond or frighten him. Amazed at having touched off 
 such a magazine ; frightened at his own success ; and hardly believing 
 his eyes, as the old horses stood stkf, wondering where was the scourge, 
 and the accustomed shouts of their friends from Tipperary and Ros- 
 common, who stood around resting on their spades, as soon as the mys- 
 terious tab-man of the Chief Justice took effect; and softened by such 
 hard-wrung *ears in eyes he never saw wet before : his compassion sur- 
 
36 
 
 rendered after a parley of forty-eight hours. Mephistopheles, they said, 
 was now down in his turn. Others however took the field. “ Do you 
 gravely hold,” said he, “ that this act means you to wander about where 
 you please, and, after you have been in another State, to come back to 
 the ending-place fixed by law. One charter, then, will do for all the 
 railways ever to be. What is to keep the other railways from running 
 over your track?” “we do not mean to go to the Church at all: we are not 
 obliged to go there.” “ Well : but is it not in the act?” “ It is not in 
 the act : you made the General Court put it in.” As to his making the 
 General Court put any thing into an act ; it can answer for itself: if the 
 court thought he did ; they should have asked him what it meant : not 
 taken, his making the General Court put any thing into an act, for proof 
 that it was not in it. Somebody else asked an associate justice to stop 
 them : the precedent was to settle the law, it seems, for our court instantly 
 took occasion to tell us what it is, as we have seen : Every body hung 
 on the words, wisdom herself was going to speak : He, of course, ex- 
 hausted his great powers on the problem : notwithstanding the advan- 
 tage he possessed of being president or director of a railway himself, 
 they failed to solve it : it was solved by the “ High Court of Chancery 
 of the realm, immediately representing the Crown ; guardian of her 
 majesty’s infants, idiots and lunaticks ; one of her privy counsellors ; 
 speaker of her House of Lords ; Keeper of her conscience and her 
 Great Seals.” That determined that the law was clear against the peti- 
 tioner; but so doubtful that the court could not find out what it was: 
 both. Happening to be taken by the railway, I suppose, at the flood ; as 
 the other took them at the ebb : one of them did act : I believe. One 
 of the farmers who had implored them to help him, put his own cattle 
 into his field against his door: This was the very place where the rail- 
 way were going to pass with all their gravel for the great marshes : a 
 key of their whole position : What followed ? Why, there started from 
 the earth five hundred gentlemen from County Galway and from County 
 Mayo, from County Kilkenny and from County Kerry, from the bog of 
 Allan and the isles of Arran, with spades, picks, crows and shovels in 
 their good right hands ; shouting in Irish ; like their Gaulish brethen at 
 the Roman legions ; “ truci cantu clamoribusque variis horrendo cuncta 
 compleverant sono” ; headed, in person, by the magistrates of the county, 
 the railway’s counsel learned in the law, the president of the Piscataqua 
 bank and the collector of the customs for the United States : and, like 
 the bones of the valley before Ezekiel : “ The breath came into them, 
 they lived and stood up upon their feet, an exceeding great army.” 
 What became of the prophet, after he summoned such a host, I do not 
 know. Another freeholder armed his friends and himself, and revived 
 the good old Norman fashion of trying a writ of right by wager of Bat- 
 tel : What did the railway do ? Why they paid him : at the rate of two 
 thousand dollars the acre for a heap of gravel, with no other building 
 near but the one he was in ; and that he moved there apurpose. The 
 committee at last reported : generally about five hundred dollars the acre; 
 the railway paying more money to get through the sands and swamps 
 
37 
 
 of Old Hampton than it cost to build the road on the same ground : 
 they, and the courts with them, making a farce of the law ; unsettling the 
 tenures of property by the doctrines they put forth more than by any 
 occurrence since the American war ; forcing a sentiment of hatred to 
 such corporations upon respectable people by their unutterable folly, 
 that has affected the safety of corporate property in New-Hampshire for 
 fifty years : aggravating their own ultimate expenses between the North 
 banks of the rivers Merrimack and Piscataqua, in consequence, to a se- 
 rious extent: making a political thing of it, of their own accord, and giv- 
 ing the opposite party five hundred majority in a district doubtful before, 
 and turning one town to the other side that had been on their own from 
 before the memory of man ; at last, winding up with a quarrel with 
 those that led them on, and swearing they were jockeyed themselves. 
 I must pick some flowers off its banks: 1 will get again into the great 
 river of the law : which I expected to find so broad and full : but where 
 our courts found so many sands! and rocks the [stream so narrow and 
 crooked : and the water so low. 
 
 On the whole it seems to me clear: That this railway had no right to 
 take land or any thing else against the will of its owner till the damages 
 were assessed by a Jury and were paid ; let the statute have been what 
 it may : nor can the General Court ever give such a right, except it 
 absolute assure the owner by statute, that the State contracts with him 
 herself to pay such: That they had no right to do it, by the statute itself 
 interpreted to a lawful statute: and then, not till they were assessed in 
 the way clearly set forth in the act: And that in thus wilfully deviating 
 from the course prescribed by the State, and breaking or eluding the 
 State’s own agreement, or as the Englishmen have it, contract, with all 
 persons whatever to be affected by their proceedings, expressed in their 
 act of incorporation: They were not only in the act of setting up a nui- 
 sance, both publick and private; but engaged in a breach of the law (how- 
 ever ludicrous in story), which suffered as a precedent, overthrows every 
 tenure of property, more especially their own, known to the law : And ; 
 that, though they were liable to be stopped in various ways, the most 
 direct way to do it, and thoroughly consistent with the customs of such 
 a court, was by an injunction from a court of chancery : That, as the 
 owner’s right was undisputed, except so far as it conflicted with this new 
 right resting upon a statute ; if there were any doubts as to the com- 
 pleteness of the last right ; the owner’s right was still complete in law : 
 and ; That, till that question was set at rest by the Lord Chancellor him- 
 self, the last should have issued his injunction in his favour ; or to the 
 next hearing after its being set at rest by a court of common law. The 
 not issuing it, however, might have been defended in some degree : but 
 the court has volunteered what is no defence ; and troubled itself to tell 
 the world the law without being asked to : in doing which they usher 
 such doctrines into the world about these private corporations and the 
 right of the General Court to give them unlimited powers; that to over- 
 look such constitutional law and interpretation of statutes is wrong. 
 Let us see, however, if the court had the power. 
 
I do not profess much acquaintance with the history of courts of equity 
 in the States : 1 believe that they have generally followed the steady 
 stream of registered. English precedent, arrogating a little more width 
 of discretion than would he willingly tolerated there, though this is not 
 so taken hold of by the pub!ick,from the contractedness of their --spheres: 
 and that, in them on the whole, the law of equity has been admirably 
 administered. What the jurisdiction of the others may be though is not 
 material: for, as 1 read it, New-Hampsbire has magnanimously bestowed 
 on hers, pretty much, the full assemblage of authority, which is found 
 : n the Lord Chancellor of England. Whoever drafted the statute has 
 been careful to put, safe just in the middle of an array, behind and before, 
 of single and distinctly described employments of this great authority, 
 filling a page, four little general words, which might have been in more 
 danger at the outposts of the grand army: among the far-stretching files 
 of his bayonets, we can still get sight of the little cocked hat of the Em- 
 perour in the midst of his soldiers : he has also been careful to register 
 for him the full use of the writ of injunction. What she gave all this for 
 I do not know : his pure equity power can do no good to a people so 
 shrewd and watchful, so free to cavil and so hard to bind. But some of 
 the powers of his court are, in the business of life, as well as a court of 
 law, not. to be done without ; not only to help out what the common law, 
 or some law, ought to do, but which it does not originally mean nor profess 
 to do ; but to help out its doing what it does mean to do where it be- 
 longs : for, had no Lord Chancellor ever subsisted, they must have been 
 found in the hands of a court of common law. Be that as it may: these 
 powers are here in the hands of our court of equity: and in this stage 
 of its growth equity must give, on every question it is called on to deter- 
 mine, a complete investigation of our common law; our statute law; 
 and a laborious examination of what each question is in itself : lor not 
 doing, where a court is concerned, is pretty much the same thing as 
 doing : in law. In such cases as this : it can lean little for assistance on 
 English precedent; for an English statute and one of ours are so oppo- 
 site in nature, that it is folly to attempt it. But its precedents, it registers 
 at this period, are of serious import : for it is itself that is,|through them, 
 to let us know the orbit of a power, which, through a vast range of human 
 rights, though it look so quiet, is to be beyond control. It must fix irrev- 
 ocably where its tremendous wheel is going to revolve. It must let us 
 know where to stand to get out of its way. No awkward rior unsteady 
 hand must have hold of it till this be done. Where a Chancellor is to 
 strike or spare we have a right to be told. He is not to let us pass the 
 same spot in the forest, safely fifty times a day, where he lies hid; to find 
 ourselves there, all at once, with our bones cracking in the folds of the 
 anaconda, that has been watching in the trees the whole while. Me 
 must give us something to guess by, what he is to do : and this must be 
 precedents he means to keep ; as much as a court of common law: more; 
 for its expansive drift is the essence of his court : and from it there is no 
 appeal, I concede that there is often just cause for doubts what he 
 shall do: contrary to the usual course, 1 wrote this letter myself first and 
 
39 
 
 looked into the books afterward ; about his equity obligations : but had 
 to make up my mind to let the first draft stay as it was : satisfied that 
 there was no shadow of doubt that the law was what 1 at first supposed 
 it : that the only question was, whether the Chancellor should stop 
 them, or tell the man to do it himself. In this part of a Chan- 
 cellor’s jurisdiction, he will find it hard to keep off complete decis- 
 ions, and refuse redress from the confused doubts of his own mind : for 
 what, mostly, he has any right to give license to, he may be called upon 
 to see that it is not resisted : what he has no right to prevent, we can 
 make him enforce. Interpretation^ of statutes he must make on the 
 strictest precedents and principles of the common law. He is always 
 dealing with artificial rights established already with accurate and un- 
 changeable exactness by statutes or the common law. Can our Lord 
 Chancellor reluse to prevent, what is an injury by statutes or the com- 
 mon law, but cognizable by a court of equity, because there is no suffi- 
 cient power to do it elsewhere, or simply from custom, for it is not true 
 that a sufferer can never show his face in a court of equity, that has any 
 remedy at common law, not even if he have a complete one; till he have 
 time given him to find out, long after the injury is irrevocable, whether 
 it would not bring too many such people into his court, to prevent it? 
 Unquestionably he cannot. His high power, through his writ of injunc- 
 tion, fills a chasm which would have been filled in England, long before 
 now, by statute, had no court of chancery subsisted : and here it is 
 wanted, from various reasons, ten times as much as there : it is not in 
 his hands, there, because he is a court of equity: but simply, as every 
 body knows, because from accidental historick circumstances it is found 
 in a Chancellor’s hands and has been suffered to abide there : others 
 have agreed to go without it, because he keeps it for them : it is not 
 essentially an equity power ; it rests on completely different and oppo- 
 site principles. Or, at another time : somebody asks the Chancellor to 
 make somebody tell, what he has a right to have found out, but nobody, 
 owing to ineradicable, arbitrary law, can make him but the Chancellor : 
 though the fulfilment of his prayer is contrary to every custom of the 
 common law ; is he to grant it, or refuse to grant it, on principles which 
 in nature distinguish his court from a court of common law ? He may 
 have wider discretion than before; or he may not: but he should have 
 little in either: for his granting can seldom do much harm: his refusing 
 may a great deal. Circumstances again have kept for him a power 
 which nobody else has : but which other people would have had ; and 
 they must have it, if he be to use it as a moral tool, in place of a cus- 
 tomary link in the business of the law. When this purpose is effected : 
 The same asks him to decide a vital question, and enforces his request 
 through what has been discovered by this process. Now: though still 
 governed by a set, not only of abstract, $but of most arbitrary rules, or 
 professing to he, for they have repeatedly changed, but usually in Eng- 
 land, it must be acknowledged, for the better, he is more in a real court 
 of equity : now he often must take a responsibility ; before, very little : 
 now he has some width of discretion to compare, balance, raise disqui- 
 
40 
 
 sitions, make farther inquiries : and deny. And in issuing a perpetual 
 injunction, he is in some sort in this court of equity : surely not much 
 in issuing one till the hearing. Or at this time : Somebody wants him 
 to prevent what must or may be some irreparable injury or other: we 
 have seen that Lord Eldon, in the case of deviation, will not trouble 
 himself about what it may be : the necessity of showing real irreparable 
 damage, may make treaties more compact, but it is not borne out 
 by decisions ; and it would be absurd if it were : in one large class, a 
 Chancellor requires no proof of more than nominal : He asks the Chan- 
 cellor to prevent what will be an injury, if his right, never impaired nor 
 questioned before, be still good and be to continue good; till it be proved 
 that it will not : and it has not been proved before the Chancellor that 
 it will not. Is he to want time always to hesitate and fluctuate ? To 
 determine, like our court, that his right is impaired without hearing or 
 Trial ; the very thing he denies : that he does not deserve protection, 
 because it would be useless to give it; for he thinks from his own pri- 
 vate knowledge, that the law will take from him, some time or other, 
 when is uncertain, the right he, the Lord Chancellor, knows he has now? 
 Unquestionably, he is assuming a power of a very dangerous nature : it 
 must end, here or any where else, in breaking up his court. His refus- 
 ing is near about the same effort of power as giving. He must put an 
 end to all farther prosecution of the injury till the right be determined 
 by himself or by a court or jury at common law. The writ of injunction 
 the owner had a right to look for: though English precedents are few 
 that meet his case. Of course they are few : this gives more, not less, 
 obligation to the court to determine it: a wilful deviation from the 
 course prescribed in the act few such corporations would, there, dare to 
 attempt : we have seen what they say when they do (this question 
 would have been best debated on a bill from the dissatisfied members 
 of the corporation ; which on investigation must have been sustained by 
 the court; for they could not help it): And, as to the lawfulness of the 
 statute itself or the doubts as to its interpretation, such things in Eng- 
 land have little place : the first none ; and their acts are so well drafted 
 now, that he can seldom doubt their meaning: if he do ; he has the 
 court of Queen’s Bench to assist him, and the decision of the Lords on 
 the law. I do not profess to comprehend, how a Chancellor can help, 
 here, the original estate and some damage being both conceded (except 
 he tell a long story about filing, to be sure, bonds in his court and the 
 silver and gold, which no statute tells anything about this corporation’s 
 doing, and every body else would have as good a right to, that wanted 
 to make people sell); how he can help bringing the full examination of 
 the statute, and its bearings upon the law, and upon the business in 
 hand, in every way, into his court ; without he get it tried elsewhere if 
 he please : that he can do here : The owner’s right is completely good 
 till this be done. If the Chancellor’s mind be not satisfied that what is 
 doing agrees with the statute, and the statute with the law : who so fit 
 to keep off aggression till it be : as himself? Is our court, after getting 
 up their court of equity themselves, to establish the doctrine that when 
 
/ 
 
 41 
 
 * a company of adventurers,” so says the Chief Justice of the court of 
 King’s Bench, is about to drive a person off his land, if the owner’s right 
 be good in law and theirs be not ; or it be doubtful whether theirs be or 
 not ; or whether they will be bankrupt or no before they pay for it ; of 
 which the law can know nothing; for it cannot tell how much they will 
 have to pay till the Jury tell ; and the State say she shall not pay for it : 
 and so on to the end of the chapter: that he has no business to show his 
 face in a court of equity ? 1 am only playing with the fish in doubting 
 
 whether the force of a statute can he discovered, usually, in this way as 
 soon as another: reason teaches us that such a right as to build a rail- 
 way over grounds, under houses, churches and churchyards, across roads 
 and great rivers, against all opposition, or to stop a railway earning sev- 
 eral hundred thousand dollars a year, is not to be left floating about; we 
 must have a precedent to tell us what it is: and it must be enforced one 
 way or the other. If our Lord Chancellor be not under obligation to 
 protect the man that resists, he will be asked to put down, perhaps, his 
 resistance : and after being chased round the tree to get off from doing 
 this very thing, he must at last get collared, and resolutely and absolutely 
 determine what the rights are which rest on nothing but the statute : 
 he did not, here, get off, as he tried to, from saying whether the railway’s 
 right was indisputable : he did, for all practical purposes, decide that it 
 was: had they turned round and asked for an injunction to keep one of 
 the same owners from building a house where they chose to select their 
 ground, he must have issued it till farther hearing : or told them to 
 drive the others off. And as I understand the drift of the whole: nobody 
 can in any way obstruct the proceedings of these peculiar corporations 
 without incurring the risk of paying for their whole loss of time on the 
 whole road. Consequently, nobody will ever attempt it : and, with any 
 sort of excuse for a charter, their power, in practice, is neither moi;e nor 
 less than absolutely superiour to all opposition, remonstrance or justice 
 whatever. 
 
 As to these writs of injunction again : I will not say equity is installed 
 as chancellor, to keep as a mother all her children from hurting each 
 other at all : nor will I look up English authorities to show what they 
 are. Sir Edward Coke, the first gun usually fired as a signal of battle, 
 nor Ellesmere with him, will I summon up to see another row with a 
 Chancellor or hear him instructed : Coke and Egerton, their quarrels 
 over, may rest in peace for me. Neither will I mount our own Papinian, 
 who stands ready bridled and saddled to my hand : he would carry me 
 like oil over this ground. Fair colours and bounteously bestowed he 
 puts on : the old lady looks well in her rouge. I will not be too munifi- 
 cent in my dispensations of equity to a court of chancery. A tribunal 
 to busy itself about the fraud, accident and mistake of human contracts, 
 is not imperatively required by the habitual faults of every family of 
 men. But the power of, to some extent, making hopeless the attempt of 
 the strong to terrify the weak, is not to be lightly relinquished. This 
 most admirable prerogative of a court of chancery is, in nature, to some 
 extent, completely separable from one : and might, so far, be given to a 
 
 6 
 
42 
 
 court of common law. The writ we do want: the court of equity is 
 more doubtful. It must bring itself in from sheer necessity. Our wise 
 Lord Chancellor says: If “ the respective rights of the parties admit of 
 doubt”; no injunction shall issue : he wilfully mystifies what is as plain 
 as day. The term “ doubt” has no business here, with respect to either 
 party. He has before him a subject of the State, whose right is not dis- 
 puted and is still complete against all the world but a single aggres- 
 sor : the aggression is not disputed and is supported by a simple statute. 
 There can be no such thing as a “ doubt” about either’s right. He is to 
 look to nothing but what the new right is ; not on any equitable dreams : 
 but at common law. If it be not clear ; there is no “ doubt” as to the 
 other. Whether he choose to defend this is another question : but he 
 is imperatively forced by law to hold it good till the other be good in law. 
 If no rights be clearly subsisting at common law from a statute, none 
 subsist here in a court of equity: he has nothing to do with them. If 
 lie be bewildered by the doubtful right of the railway or anybody else, 
 the owner is not to suffer for that : he must issue his injunction till his 
 self-possession come back : or tell him he need not come to him ; but 
 drive them off himself : if the railway’s right was not so clear that they 
 could lawfully drive him off yet ; he could them. And where so good 
 a place to find the law, as the Lord Chancellor and Chief Justice of the 
 State, in whose breast it all lies so safe P This shows, what I might 
 have said before, that this “ bond” he was so entranced by, and the silver 
 and gold which revealed to the maiden palm of his poor clerk such 
 hitherto unknown celestial thrills, could not have been meant for a 
 chancery ^uit : for no man of common sense, would come back into his 
 court of equity to hear it discussed whether he ought to have been 
 kicked out the year before : till, if he wanted to go farther, he had gone 
 into a court of common law, of himself, and got his right tried: Then 
 he might come back and demand an injunction for good. The writ of 
 injunction does not derive its value here from its issuing from a court of 
 chancery. It is the most complete substitute for actual force : every 
 body that helps to support a government has a right to demand of that 
 government, without using force himself, or incurring the risk of ruin, 
 defence at his own pleasure, instant, complete, exact and full, for all, 
 for every right, every contract, every lawful fancy that fills his head : it 
 must give it or it is no longer a government. The Lord Chancellor of 
 England issues his injunction to restrain from cutting down ornamental 
 trees, or ploughing up a strawberry bed, as readily as to restrain from 
 tearing down a palace. No law deliberately can mean to let a subject 
 be driven to use force himself, or run the risk of ruin, to defend his 
 rights ; when it knows they are attacked (it is not to be expected, to be 
 sure, that the owner should be punished ever for resisting a pretension, 
 to which a Lord Chancellor finds so much “ doubt and difficulty,” that 
 he cannot tell what the law is); but the government itself, if his right 
 be now doubtful in this way only, must sustain it till his loss of it be 
 proved. These private acts of the General Court are not to oust a sub- 
 ject, when a Lord Chancellor and three Masters of the Rolls, a Chief 
 
Justice and three puisne Justices, all together, cannot find out whether 
 they have any force and cannot tell him what they mean ; till somebody 
 can. The railway’s Irish are not the depositaries of our law to deter- 
 mine the question. It is very clear that a court, that says that the 
 aggressor’s right is “ doubtful,” could not hold anybody in the wrong lor 
 resisting it, when his own right was agreed to be not “doubtful.” against 
 the whole world except this single aggressor. The mid-day folly of any 
 other doctrines comes home, of itself, to every man of truth and sense, 
 throughout the world. Hear the fourteenth article of the bill of rights: 
 “Every subject of this State is entitled to a certain remedy, by having 
 recourse to the laws, for all injuries he may receive in his person, prop- 
 erty or character ; without being obliged to purchase it ; completely and 
 without delay : et cetera The General Court never did mean to keep 
 writs of injunction from being given in doubtful cases : the right to be 
 determined afterwards : see the statute: “Said superiour court may 
 grant writs of injunction whenever the same shall be necessary to pre- 
 vent injury :” The chancery power of injunction is completely given, as 
 distinct from the other powers : “ may” in such places means “ must :” 
 and each separate Justice is given power to issue one in vacation till 
 the next term of his court: by the express words of the statute : in Eng- 
 land the Lord Chancellor or Master of the Rolls can exercise his full 
 powers wherever he is : ours cannot ; but this power is purposely given 
 each here by statute. The issuing one till the next term of a court has 
 nothing mysterious or frightful about it : This writ is to shackle these 
 corporations ; and keep them from being too breachy : they have been 
 found in other people’s pastures rather too often, and have got the name 
 of it too well established; for their master, the State, not to get some 
 shackles ready. On the other side of the water, where, in the land- 
 holders they get hold of people that can last out law-suits as well as 
 they can ; it is not so'much wanted : the only reason it has not been 
 much used. 
 
 I am disposed to believe, in fact 1 am told, that I rate too low the en- 
 terprise and professional skill with which our courfof chancery has been 
 round and sounded all the bays and inlets of the coast of their power. 
 The pleasure of a straight coast, somebody says, is purely imaginary : the 
 more broken and irregular, the more good harbors for traffick : and, he 
 might say, the easier to defend against an enemy that'doesnot know the 
 way in. The extent of their power has disincumbered itself of doubt, I 
 believe, with respect to these very questions: Is it true, amon g other 
 ludicrous circumstances, that a person who told one of the farmers they 
 had no right to his land yet, was tracked after, as this corporation’s peo- 
 ple supposed without his knowledge, for proof to bring against him, and 
 in one unknown, under the circumstances, to the English common law, 
 for a hundred years, an action for stirring up suits, before a court, that 
 tells us that the State means to give us for “just compensation,” “ the 
 ordinary common law remedy against trespassers (!) ab initio against 
 all (!) concerned in the acts done upon the land” P Are we going to 
 
44 
 
 fetch her into court too for stirring up suits? How many is it, she 
 menus to stir up ? And tiie best of it is: tiiat he puts the State into a 
 more ridiculous posture than is necessary, for his own theory: for the 
 owner might come into his own court of equity for an injunction and 
 an account; which would look better: though what good either way would 
 do, 1 do not know. Is it true, is it not notorious, that the railway never 
 affected to defend their proceedings in any way but by purposely taking 
 advantage of his happening to have some worthless ground, straight 
 between two ending-places fixed by law, to swear that all fault found by 
 everybody for twenty miles round was got up by him ; and (flebile 
 ludibrium !) that they meant to break their statute of purpose, and carry 
 a whole High Court of Chancery out. of their way with them on such 
 an errand, just hard at work building up by precedent the great dome 
 of equitable jurisprudence, that is to fill the air over the heads of our 
 children, to harrass him ? But though we can laugh at the tricks of a 
 corporation, mv learned friend, will it just do to let off our Lord High 
 Chancellors with a jest ? J have some misgiving. Well : suppose the 
 same railway had gone round and taken the village of Concord under 
 this act: would the court have still assumed a sweeping statute ? How 
 could they have helped it, except they held the statute up to their eyes 
 and read what was in it; and found out whether the railway was where 
 it belonged ? Must the owner’s counsel, or the owner himself, come to 
 show them how to read it? Or when a subject’s house is pulling down 
 in January: and he asks the Chancellor to help him : shall the last an- 
 swer that he must let it be pulled down now|: for the stranger, that is at 
 work at it, is ready to made oath that he got in and out of his scullery 
 one day, without his wife’s emptying the kettle over his head; which is 
 constructive assent on his, the owner’s, part that the other has got a copy 
 of a private act of the New-Hampshire General Court in his breeches- 
 pocket, which he, the Chancellor, has not yet seen and does not know 
 what there is in it ; but learns from the stranger that he is ready to 
 make oath, that, as he reads it, it tells him take right hold : and that, 
 consequently, if he obstruct the stranger’s operations, he must send him 
 to jail : but that, if he insist upon it, he will make the stranger let him 
 s 'e this act he has in his breeohes-pocket next June : when lie, and three 
 other Lord Chancellors will, upon “ full hearing and investigation,” 
 which, if he will come up somewhere a hundred miles off, he may have 
 the pleasure of witnessing himself, determine whether, under this stat- 
 ute, he was lawfully, with his wife and children, kicked out of doors the 
 January before ? The court should have stopped them till they got thetr 
 charter : they should have stopped them till the damages were assessed 
 through a Trial by Jury; and were paid ; go where they would; under 
 the acts on which rests this corporation’s franchise. If the acts neglect- 
 ed it ; it was time to tell the General Court to neglect it no longer. It 
 is notorious that the State does not assume these debts for her own : 
 there is the bill of rights ; and it has not been altered. However the 
 court stanchly defends itself by saying there was no hurry: there was 
 to be “ full hearing and investigation” the next summer : tick once more; 
 
45 
 
 it is all tick. Telling the sufferer, that the right of the aggressors to 
 kick him out, shall be subject to “full hearing and investigation” the 
 next year ; but that in the mean time he shall go to jail if he says a 
 word : is a fit companion for the “ tick for a statute.” 1 When this injunc- 
 tion was prayed for, or rather the injunctions, for the court tells us they 
 were innumerable, and all of them considered as one ; this corporation’s 
 franchise gave it no right to put a railway in them, or on them, or under 
 them, or over them ; their lands against their will. 
 
 People in the profession should take up the cudgels, my learned friend, 
 not I : it was not from want of having heard that it is a bad thing to be 
 caught in a row without wanting to put down completely either party 
 engaged in it (I am no enemy to these corporations if their powers he 
 kept within the limits of what they are in law), that 1 censured the pro- 
 ceedings of this corporation : which, in themselves, are of little moment: 
 but such doctrines as our courts hold in respect of them are enough to 
 wake anybody up : lawyer or anything else. They are, in law, incapable 
 of defence: they are at war with every principle of justice : they are 
 ruinous in policy to the people that praise them : and they set up, the 
 worst of all governments, an irresponsible, meddling legislative power: 
 led, one day, by the craft of the cunning or the rich ; to be the tool, to- 
 morrow, of the retaliation of the cheated and the envy of the poor. These 
 corporations, of every sort, have a strange notion of their own interests, 
 if they think they shall gain by letting any be looked on, in law, as this 
 sort every where wants to be looked on. The confusion of their own 
 franchises would put it in the hands of each State’s legislature to make 
 it impossible to find out, who owned any thing : or for any body to re- 
 cover any thing for what he is stripped of. A very limited purse, scien- 
 tifically spent in this very State in the county of Strafford, would make 
 useless, half the year, every mill on the river Merrimack, from its source 
 to the sea ; and laugh at the dream of a dozen future cities: with a fran- 
 chise, interpreted by this opinion of our worthy Lord Chancellor, a 
 single person, by getting a certain charter, without notice to the world, 
 without being tied to some strict interpretation of his act, could extort 
 millions : they could not prevent him ; the courts could not take back 
 their law; nor the General Court its grant. Are the men, ready to do 
 such things, so scarce in New-England, that their ingenuity wants to be 
 stimulated by the offer of spoil ? The hoards of the rich and the earnings 
 of thousands of the poor, will rest on a statute. What is a statute worth 
 with a careless, vascillating legislative and judicial power? Nothing. 
 The court of the United States is not to always interfere to save : they 
 are tired already. The system of innumerable private corporations for 
 purposes of a public nature, I have not to consider. That it could be well 
 dispensed with I do not know : that it is not like to be I do. These 
 United States have told the world, to be sure, they were going to solve 
 the problem, so many have tried to and nobody has, to keep each of us 
 equal in political power to the other : but they have not gone so far as 
 to mean that each of us should build his canals and railways for himself: 
 and everybody knows we are not the people to sit still and agree not to 
 
46 
 
 r w 
 
 be envied : that every such thing we shall attempt, that can be devised ; 
 and that skill, industry and money can bring to passive shall execute. The 
 usually predominant party of the United States says that their general 
 government should not attempt them ; and most justly : they say their 
 State-governments should not; perhaps with truth : Then this growing 
 empire is to be arched over by the works of these corporations. If they 
 be to have a hand in building the publick works of the United States ; 
 if they be to do all that single persons cannot ; or a tenth of it : the law 
 of their tenures will be a serious matter. Are they to do what this 
 country calls for: and keep pace with the wealth there is like to be in it? 
 Wealth is it ? Why, some time or other, this is to be Mammon’s chosen 
 field. The temptation and the ready to be tempted are both here : such 
 real natural wealth as these United States contain is not elsewhere 
 known ; so much of all : and whom is this temptation set before ? A 
 people restless, ingenious ; but as lasting and sure as they are daring and 
 vain : fifty millions of them, in fifty years, must inhabit but not fill these 
 States : their genius is of the first order ; their resources are absolutely 
 boundless : they are thrown at the feet of European civilization in its 
 palmiest day; with Europe’s own progress and every convulsion to help: 
 To canal it and railway it and bridge and dam it ; is the catechism of 
 this magnificent region, where a new faith, more intolerant than Mo- 
 hammed’s, that of Utilitarianism, is to triumph undisturbed. There is 
 the field God has thrown open to work in : its vastness and richness 
 reach to the awful: and it will be worked with the undying efforts of 
 that passion for adventure and thirst of gain which nothing but death 
 ever yet quenched in a Yankee’s heart: which laughs at labours and 
 dangers, at delays and reverses, with a sublime heathen heroism worthy 
 of a better object. If these private corporations be to do a tenth, and 
 they are like to do in the end almost all, that we mean to do, besides 
 ploughing the ground : the wealth of thousauds upon thousands will 
 rest on a statute. Their franchises will overtop the interests of single 
 persons ; but they will not each others’ : neither is to set up too high 
 the way to keep still the rage to pull down. They will be always mak- 
 ing and unmaking in legislatures and contesting in courts. They are 
 deeply concerned that the power, that creates and destroys them, should 
 not be careless : that the rights, it alone can give, should rest on re- 
 spected laws : and to bind it in the chains of habit : “ Komm, lies es 
 selbst in dem Planetenstand” “ Dass Ungiuck dir von falschen Freund- 
 en droht.” 
 
 They will gain nothing by confusing people’s ideas about publick and 
 private property: the publick may get to think, at last, they may do as 
 they please, with what they are half-told is their own. The other doctrine 
 is the true one : the simplest and least complicated in law: the straightest 
 in practice : the justest to others and the safest to themselves. They 
 are thorougly private interests : the public good’s creating them Eng- 
 land looks on as one of her fictions of law : like the debt to her king in 
 his court of Exchequer; now, l believe, exploded by statute : It is best, 
 for themselves as every body else, that they should be looked on as such 
 
47 
 
 by the legislative and judicial power. There they are incorporated to 
 take land against the owner’s will as much as here : they are not incor- 
 porated, without every body’s being heard that t wants to be, or against 
 determined opposition. The shifting estates without any notice at all ; 
 the giving them a whole country to pick at pleasure, after they are char- 
 tered instead of before ; is pure violence. When a charter is asked for : 
 let the right of survey be given ; to be. used without insult, and the dam- 
 ages of it, if any, be assured by the State : let there be notice given to 
 each town : Jet there be, the next session after all this, a clear and pre- 
 cise map of their projected course, laid before the legislative power : 
 let all people, where it is to be, be fairly heard ; they surely should be : 
 let the Trial by Jury be prescribed in the act ; how and when : it must 
 be : and the damages be paid first or they must be assumed by the State 
 for her own : Then, if the owners will hold out, the State will use its 
 high prerogative as it thinks best. With such accordance to the law of 
 ihe land, and our principles of government ; which it lies not with the 
 General Court, or other courts, or railway-companys to alter : few will 
 obstruct their well-meant schemes, and few, except among their own 
 tribe, will envy the deserved success of every one of them. 
 
 1 have the honour 
 To remain, 
 
 My learned friend, 
 
 Your obedient servant, 
 
 A FARMER. 
 

 
 
 
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