DUKE 
 
 UNIVERSITY 
 
 LAW LIBRARY 
 
ARGUMENT OE HON. JOHN M. READ, 
 
 IN FAVOR OF THE CONSTITUTIONALITY OF THE 
 SUBSCRIPTION BY THE 
 
 CITY OF PHILADELPHIA, 
 
 TO THE CAPITAL STOCK OF THE 
 
 HEMPFIELD, AND PHILADELPHIA, EASTON, 
 AND WATER GAP RAILROAD COMPANIES, 
 
 DELIVERED BEFORE THE 
 
 SUPREME COURT OF PENNSYLVANIA, 
 
 ON MONDAY, 25th JULY, 1853. 
 
 IN THE CASE OF 
 
 SHARPLESS AND OTHERS v. THE MAYOR, 
 ALDERMEN, AND CITIZENS OF PHILADELPHIA. 
 
 C. SHERMAN, PRINTER, 
 
 19 St. James Street. 
 
Digitized by the Internet Archive 
 in 2019 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/argumentofhonjoh1853read 
 
ARGUMENT 
 
 OF 
 
 HON. JOHN M. HEAD, 
 
 IN FAVOR OF THE CONSTITUTIONALITY OF THE 
 SUBSCRIPTION BY THE 
 
 CITY OF PHILADELPHIA, 
 
 TO TEE CAPITAL STOCK OF THE 
 
 HEMPFIELD, AND PHILADELPHIA, EASTON, AND 
 WATER GAP RAILROAD COMPANIES, 
 
 DELIVERED BEFORE THE 
 
 SUPREME COURT OE PENNSYLVANIA, 
 
 ON MONDAY, THE 25th JULY, 1853. 
 
 IN THE CASE OF 
 
 SHARPLESS AND OTHERS v. THE MAYOR, ALDERMEN 
 AND CITIZENS OF PHILADELPHIA. 
 
 PHILADELPHIA: 
 
 C. SHERMAN, PRINTER. 
 1853 . 
 
STATEMENT 
 
 A bill was filed in May, 1853, by William P. Sbarpless, 
 and others, against the Mayor, Aldermen, and Citizens of 
 Philadelphia, and Charles Gilpin, Mayor of the City of Phila¬ 
 delphia, in the Supreme Court of Pennsylvania, praying for 
 an injunction to restrain them from subscribing on behalf of 
 the City of Philadelphia to any shares of stock of the Phila¬ 
 delphia, Easton, and Water Gap Railroad Company, and the 
 Hempfield Railroad Company. To this bill, an answer was 
 put in by the defendants. A motion was made by the plain¬ 
 tiffs for a special injunction; the argument of which was heard 
 by a full Court at Philadelphia, on Monday, 25th July, 1853, 
 Mr. B. H. Brewster and Mr. G. Mallery for the plaintiffs, 
 and Mr. J. M. Read and Mr. G. hi. Dallas (with whom were 
 Mr. E. Olmsted (City Solicitor), Mr. J. P. Brock, and Mr. St. 
 Geo. T. Campbell) for the defendants; and on Tuesday, the 
 6th September, 1853, the Court at Pittsburg, denied the 
 motion for an injunction. C. J. Black and Justices Wood¬ 
 ward and Knox agreed in refusing the injunction, and sus¬ 
 taining the constitutionality of the subscriptions, and Justices 
 Lewis and Lowrie dissenting. This decision has finally settled 
 this question in Pennsylvania. The following is the argument 
 of Mr. Read. 
 
ARGUMENT. 
 
 This is a question of deep interest to the people, not only of 
 this State, but of at least twenty-three states of the Union, 
 numbering upwards of twenty millions of souls, who have 
 adopted the policy of making their public works by the aid of 
 municipal subscriptions. 
 
 Twenty-three states have seen no constitutional obstacle to 
 such subscriptions; and, wherever the question has been pre¬ 
 sented for judicial decision, it has been decided in favor of the 
 legislative power. 
 
 In eleven states, tribunals, generally of the last resort, have 
 directly decided the constitutionality of such laws, and they 
 have thus passed the ordeal of between forty and fifty of the 
 most eminent lawyers in the United States, occupying the 
 highest judicial stations in their respective commonwealths; 
 It has been the policy of Italy, France, England, Canada, and 
 the United States, beginning in Europe centuries ago, and it 
 is, therefore, no new question which is presented to the consi¬ 
 deration of the Court, but one which has been long ago settled 
 in all countries, by time, by precedent, by legislative and judi¬ 
 cial authority, and by the common sense of the people, the 
 true sovereigns in a free government. 
 
 It is no new doctrine, and it therefore lies upon our learned 
 opponents to convince the Court that all that has heretofore 
 been done is in violation of the written constitution of this 
 State. The laboring oar is with them. It is their duty to 
 show clearly that laws having all the forms of the constitution, 
 and sanctioned by the uniform practice of the goyernment, are 
 null and void, because they contravene some written provision 
 of our fundamental law. 
 
 What has been done at all times, in all countries, and under 
 all forms of government with general approbation, cannot be 
 
6 
 
 being printed from authentic reports furnished either by the 
 Reporters, or distinguished members of the bar in those States. 
 Upon a careful examination of all these authorities, I think it 
 is clear that the Courts in their decisions all proceed upon the 
 principle of benefit to the subscribing corporation, and not 
 upon the narrow and absurd idea that the improvement itself 
 must always commence inside of the corporate territorial 
 boundaries. The illustration in the earliest case, of Goddin vs. 
 Crump, in Virginia, in 1837, of the removal of the bar at 
 Warwick, negatives this at once, and shows the Court pro¬ 
 ceeded upon a broad and general view of the whole subject, 
 which is the spirit of all the decisions collected in the Ap¬ 
 pendix. 
 
 This erroneous view of the authorities upon the part of our 
 learned opponents, leads to a curious concession—that if either 
 the Ilempfield or Water Gap. Railroads began inside the city 
 of Philadelphia, then these subscriptions might be constitu¬ 
 tional, but that if they begin one inch beyond the limits of the 
 city, then they are clearly unconstitutional and void. The 
 same principle applied to the Pennsylvania Railroad, would 
 make the Allegheny county subscription of one million consti¬ 
 tutional, and the city of Philadelphia, Spring Garden, and 
 Northern Liberties subscriptions of five millions, being one-half 
 of the whole capital stock, unconstitutional. Is it possible to 
 suppose that any Court could adopt so absurd a construction ? 
 We know that the Supreme Courts of Ohio and Louisiana 
 would not do this, for they have cited with entire approbation, 
 the case of The Commonwealth v. M’Williams, 1 Jones, 61, 
 which sanctioned all these municipal subscriptions. 
 
 Having thus disposed of these preliminary matters, I shall 
 now proceed to the argument of the only question really before 
 the Court, the constitutionality of the two subscriptions by the 
 city of Philadelphia to the Hempfield, and The Philadelphia, 
 Easton, and Water Gap Railroads. 
 
 The individual States of the Union possess all the rights 
 of sovereignty which were not exclusively delegated to 
 the general government by the Constitution of the United 
 
7 
 
 States, with an independent and uncontrollable authority to 
 raise their own revenues for the supply of their own wants. 
 Each State government exercises all such rights of sovereignty 
 in the manner pointed out in its Constitution, subject only to 
 the prohibitions and limitations contained in that instrument. 
 
 In each State government there are three departments, the 
 legislative, the executive, and the judicial; the last two, how¬ 
 ever, are employed in executing and administering the laws of 
 the land, and in performing such duties as are imposed upon 
 them by the Constitution. The legislative power is usually 
 vested in an elective body, composed of two branches, and their 
 means of executing this power is by making laws. Laws thus 
 made are the supreme law of the land, for a law by the mean¬ 
 ing of the term includes supremacy. It is a rule of civil conduct, 
 prescribed by the supreme power in a State, for legislature is 
 the greatest act of superiority that can be exercised by one 
 being over another. Sovereignty and legislature are indeed 
 convertible terms : one cannot subsist without the ether. 
 
 In America, if the law enacted by the State Legislature does 
 not contravene the Constitution of the United States, we have 
 only to look to the State Constitution to see if it violates any 
 provision of that instrument; if it does not it is constitutional, 
 however inexpedient it may be, and it must be carried into 
 effect by the judicial and executive departments of the govern¬ 
 ment. 
 
 We know of no provision of the Constitution of the United 
 States which conflicts with the laws which are the present sub¬ 
 ject of discussion, and it is, therefore, only necessary to inquire 
 whether they infringe any provision of the Constitution of the 
 State of Pennsylvania. 
 
 By the 9th article (the declaration of rights), “ everything 
 in this article is excepted out of the general powers of govern¬ 
 ment, and shall for ever remain inviolate.” By a careful 
 examination of this article, and of all the other articles of 
 the Constitution, we can find no limitation upon the legislative 
 power of borrowing and raising money, and 1 of laying and col¬ 
 lecting taxes to any amount, and for any purpose. The people 
 
8 
 
 of Pennsylvania have placed no limit upon either of these por¬ 
 tions of the legislative power, because they trusted to the wis¬ 
 dom and patriotism of their representatives for a judicious 
 exercise of them. The remedy is in the hands of the people, 
 by a change of their public agents, or by a change of the Con¬ 
 stitution. 
 
 This power has, however, sometimes been alleged (but always 
 unsuccessfully), to be controlled by the last clause of the 10th 
 section of the 9th article, which is in these words : “ Nor shall 
 any man’s property be taken or applied to public use, without 
 the consent of his representatives, and without just compensa¬ 
 tion being made.” 
 
 A similar provision is to be found in the Constitution of the 
 United States, and in almost every State Constitution, and is 
 but an enunciation of a right recognised by the law of nations, 
 and which is called sovereign or transcendental property, or 
 the right of eminent domain. This right or power was origi¬ 
 nally exercised in time of war, as where a town was to be forti¬ 
 fied, and the gardens, lands, or houses of private citizens were 
 taken where ramparts or ditches were to be raised, or mate¬ 
 rials laid by, by private men for their own use, were taken and 
 made use of in public fortifications. So in times of general 
 scarcity, where the storehouses and granaries of private indi¬ 
 viduals are set open, or in the extremities of the State, where 
 moneys intrusted with the Government are seized. 
 
 This right of eminent domain in modern times, has been 
 principally applied to the taking of land for public works, 
 either by the State or its delegated agents, upon just compen¬ 
 sation being made, and is well described in Erskine’s Principles 
 of the Law of Scotland, page 108. “ Every State or Sovereign 
 has a power over private property, called by some lawyers 
 dominium eminens , in virtue of which the proprietor may be 
 compelled to sell his property for an adequate price, where an 
 evident utility on the part of the public demands it.” 
 
 The existence of this right in the several States, uncontrolled 
 by the Constitution of the United States, is fully recognised 
 by the Supreme Court of the United States, in the case 
 
9 
 
 of the West River Bridge Company v. Dix, 6 Howard, 507. 
 “The instances of the exertion of this power,” says Judge 
 Daniel, “ in some mode or other from the very founda¬ 
 tion of civil government, have been so numerous and familiar, 
 that it seems somewhat strange at this day to raise a doubt or 
 question concerning it. In fact the whole policy of the coun¬ 
 try relative to roads, mills, bridges, and canals, rests upon this 
 single power, under which lands have been always condemned ; 
 and without the exertion of this power not one of the improve¬ 
 ments just mentioned could be constructed.” Id. 583. 
 
 It is clear then, that this right of eminent domain is not to 
 be confounded with taxation, which is the daily business of go¬ 
 vernment ; or with the power of borrowing money, which has 
 become almost equally familiar. The same rules are applicable 
 to it as to the loss of merchandise thrown overboard to save the 
 vessel. The property taken is not the contribution of its owner 
 to the public, as his share of the public burthen, but is that 
 which he is forced to sell them for an adequate special compen¬ 
 sation, a just price. The exercise of the right of eminent do¬ 
 main operates upon an individual, and without reference to 
 the amount or value exacted from any other individual, or class 
 of individuals. 
 
 The right of eminent domain is an extraordinary power, ex¬ 
 ercised only in case of necessity or manifest public utility, 
 whilst taxing and borrowing are the ordinary and usual modes 
 of supporting all branches of the government. 
 
 This construction, which is most ably portrayed in the 
 People v. Mayor, &c., of Brooklyn, 4 Comstock, 419 (Appen¬ 
 dix of Cases, p. 15), is supported by another clause which was 
 introduced into the Constitution by the Convention of 1838. 
 
 The State or its agents, whether corporate bodies or indivi¬ 
 duals, had always taken lands for public use under the 10th sec¬ 
 tion of the 9th Article, but it sometimes happened that after 
 the property was taken the corporations became insolvent, and 
 the compensation was never paid. To remedy this evil the 
 Convention added the 4th section of the 7th article, in these 
 words: “The Legislature shall not invest any corporate body 
 
10 
 
 or individual with the privilege of taking private property for 
 public use without requiring such corporation or individual to 
 make compensation to the owners of said property, or give 
 adequate security therefor, before such property shall be taken.” 
 
 ' Now, this clearly has no relation to the taxing power, nor is 
 it a limitation of it; and for the same reason the 10th section 
 of the 9th article has no relation whatever to the power of tax¬ 
 ation, which is a part of the legislative power, and which, by 
 the Constitution of Pennsylvania, is entirely unrestricted by 
 any provision limiting either the power itself, the power of ap¬ 
 portioning it, or the power of assigning to each individual his 
 share of the burthen. The taxing power is, therefore, vested 
 exclusively in the Legislature, to be exercised in such way as 
 they may deem proper. 
 
 We have seen that the legislative power is supreme and un¬ 
 controlled, where it is not restricted by the provisions of the 
 national or state constitutions, and, of course, any branch or 
 portion of this legislative power is equally supreme. 
 
 “ It is a settled principle of American Jurisprudence,” says 
 Judge Baldwin, “ that the transcendent powers of parliament 
 devolved on the people of the several states by the revolution, 
 4 Wheat. 651; 8 Wheat. 584; 2 Pet. 656 ; it necessarily fol¬ 
 lows that the only restraint on their legislative power is that 
 imposed by their own, or the Constitution of the United States. 
 2 Peters, 410, 414.” Bonaparte v. Camden and Amboy Rail¬ 
 road Company, Baldwin’s Reports, 220. 
 
 The Legislature of Pennsylvania have, therefore, the power 
 to borrow money, and the power to tax, and they have always 
 exercised the right to devolve portions of these powers upon 
 counties, townships, boroughs, cities, and other bodies corpo¬ 
 rate having certain territorial limits, such as “ The Guardians 
 for the relief and employment of the poor, of the city of 
 Philadelphia, the District of Southwark, and the townships of 
 the Northern Liberties and Penn.” No one has ever ques¬ 
 tioned the right of the City of Philadelphia to borrow money, 
 to incur debts, and to levy and collect taxes, and yet this is 
 only supported by the simple grant of legislative power to the 
 
11 
 
 General Assembly, "who have passed the laws granting this 
 authority to a municipal corporation. The whole emanates from 
 the Legislature, and is but a creature of the legislative will. 
 
 The Legislature have exercised the power to borrow money 
 on the credit of the Commonwealth and to lay taxes, and to 
 appropriate the proceeds of both to objects of a general, as 
 well as to those of a strictly local character, in which no other 
 part of the State was interested except the one immediately 
 and exclusively benefited. They have invested $1,632,996 62 
 in various Canal, Railroad, Steam Tow Boat, and Turnpike 
 Companies, having subscribed to the stock and paid the public 
 money for works generally of a merely local, and not of a 
 State character No one has disputed this exercise of their 
 power. So the Legislature, by the exercise of the borrowing 
 power, have incurred a debt of upwards of $40,000,000, and 
 expended it in the construction of works useful only to por¬ 
 tions of the State, and some of which were entirely useless to 
 everybody, and yet the constitutionality of this exercise of 
 power has been solemnly declared by the Supreme Court. 
 Shitz v. Berks County, 6 Barr, 80. 
 
 The Legislature have therefore laid taxes, borrowed money, 
 incurred debts, made Canals and Railroads, and subscribed to 
 the stocks of various local public works, and they have autho¬ 
 rized on various occasions, similar acts to be done by various 
 municipal corporations. All these acts depend upon the same 
 clause in the Constitution which vests the legislative power of 
 the Commonwealth in a General Assembly, and which power 
 s necessarily transcendent and supreme. 
 
 The Legislature, therefore, can empower the city of Phila- 
 lelphia: 1, to levy and collect taxes, 2, to borrow money, 3, to 
 ;rade and pave streets, or make a Railroad or Canal, or 4, to 
 ubscribe to a corporation intended for such objects, the only 
 oubt suggested being as to whether such subscription should 
 e expended on works within her corporate limits. 
 
 The general authority therefore under laws of a special 
 haracter to perform all these acts is not questioned, but only 
 
12 
 
 to •what extent they can be carried beyond the territorial 
 boundaries of the corporation. 
 
 This resolves itself at last into whether they are particularly 
 beneficial to the municipal body, which is clearly a subject of 
 legislative and not judicial discretion, particularly when taken 
 in connexion with the independent action of the corporation 
 itself. Money may he expended 40 miles off to bring water to 
 a city, or at any necessary distance to introduce gas. This has 
 actually been done on a larger or smaller scale at Boston, New 
 York, and Philadelphia. This settles the general question; 
 and when, therefore, a municipal corporation is authorized to 
 lay out money or loan its credit to any work connected with 
 its prosperity, the sole remaining question can only be, Does 
 it come within the general rule ; will it materially and certainly 
 benefit its inhabitants ? and this is, after all, a matter addressed 
 to the discretion of the legislative body and of the municipal 
 authorities. 
 
 The approaches to a large city are of vital importance to 
 its citizens. “ Good roads, canals, and navigable rivers,” says 
 Smith, in his Wealth of Nations, vol. 1, p. 151, “by diminish¬ 
 ing the expense of carriage, put the remote parts of the 
 country more nearly upon a level with those in the neighbor¬ 
 hood of the town. They are upon that account the greatest 
 of all improvements. They encourage the cultivation of the 
 remote, which must always be the most extensive circle of the 
 country. They are advantageous to the town, by breaking 
 down the monopoly of the country in its neighborhood. Thej 
 are advantageous even to that part of the country. Thougl 
 they introduce some rival commodities into the old market 
 they open many new markets to its produce.” 
 
 “ There are, however,” says McCulloch (2 Commercial Die 
 tionary, p. 414), “ considerable clogs upon the continued in 
 crease of cities. The food and fuel made use of by the in 
 habitants, and the raw products on which their industry is t 
 be exerted, must all be brought from the country; and accord 
 ing as the size of the city increases, the distance from whic 
 its supplies must be brought become so much the greater, tha 
 
13 
 
 ultimately the cost of their conveyance may be so great as to 
 balance or more the peculiar advantages resulting from a resi¬ 
 dence in town. Hence the impossibility of a large or even a 
 considerable city existing anywhere without possessing exten¬ 
 sive means of communication, either with the surrounding 
 country or with other countries: and hence, too, the explana¬ 
 tion of the apparently singular fact of almost all large cities 
 having been founded on or near the sea, or a navigable river. 
 Had London been an inland town, 50 miles from the shore, it 
 is abundantly certain that she could not have attained to one- 
 third her present size, but the facilities afforded by her ad¬ 
 mirable situation on the Thames, for the importation of all 
 sorts of produce from abroad, as well as from other parts of 
 England, will enable her, should her commerce continue to 
 prosper, to add to her colossal magnitude for centuries to 
 come. 
 
 “ But all towns cannot be founded on the sea-coast, or the 
 banks of navigable rivers : and the growth of those in inland 
 situations, must in all cases depend on their means of commu¬ 
 nication with the surrounding country. Without our improved 
 roads, the great inland manufacturing towns with which Eng¬ 
 land is studded, such as Manchester, Leeds, Birmingham, 
 Sheffield, Bolton, Preston, &c., could not exist. They enable 
 the inhabitants to obtain the rude ’products of the soil, and 
 the mines, almost as cheap as if they lived in country vil¬ 
 lages.” 
 
 “ The influence that the growth of a large town has upon 
 agriculture is great and striking. ‘I believe it is true,’ says 
 Dr. Paley, ‘ that agriculture never arrives at any considerable, 
 nuch less at its highest perfection, when it is not connected 
 vith trade ; that is when the demand for the produce is not 
 ncreased by the consumption of trading cities,’ (Moral Phi- 
 osophy, Book VI. c. 11.) But the fact of their being mainly 
 '.onducive to the growth of cities, is not the only advantage 
 vhich improved roads confer upon agriculture.” 
 
 “ Increased speed of conveyance is one of the principal ad- 
 
14 
 
 vantages, that have resulted from the formation of good roads 
 the invention of steampackets, &c.” 
 
 In speaking of the advantages of canals, Mr. Phillips, in his 
 general History of Inland Navigation says, “ Were we to make 
 the supposition of two states, the one having all its cities, 
 towns, and villages upon navigable rivers and canals, that have 
 an easy communication with each other; the other possessing 
 the common conveyance of land-carriage; and supposing at 
 the same time both states to be equal as to soil, climate, and 
 industry; commodities and manufactures in the former state 
 might be exported thirty per cent, cheaper than in the latter ; 
 or in other words, the first state would be a third richer and 
 more affluent than the second.” 
 
 It is hardly necessary to say that in rapid communication 
 with the interior of the country, all these modes of conveyance 
 are surpassed, and in fact superseded, by Railroads. What 
 therefore is said, as to improved Roads and Canals, may be 
 said with tenfold truth in regard to Railroads. 
 
 Railroad communication is essential to a large city, and ab¬ 
 solutely and imperatively necessary for Philadelphia, met as 
 she is on the north and south by the Railroad competition of 
 Baltimore, New York, and Boston. 
 
 Without Railroads, trade must leave Philadelphia, and they 
 are therefore essential to her prosperity, and to the comfort 
 and wealth of her inhabitants. 
 
 The effect of The Philadelphia, Easton, and Water Gap 
 Railroad, is to bring back to Philadelphia, the trade of the 
 Lehigh and adjacent country, which is fast leaving us for New 
 York, with which there is now a continuous Railroad from 
 Easton. It connects besides not only with the whole down¬ 
 ward trade of the Lehigh, but also with the Northeastern Coun¬ 
 ties of Pennsylvania, and finally with Western New York. 
 
 The Hempfield Railroad is but the left hand of the Pennsyl 
 vania Railroad, in which Philadelphia has already invested foul 
 millions of dollars, and upon which the tolls of the present yea) 
 on an uncompleted road will be three millions of dollars. Th< 
 Hempfield terminates at Wheeling where it connects with th< 
 
15 
 
 Ohio Roads, and by them and their continuations, with St. 
 Louis, on the direct route to the Pacific Ocean. At Wheeling 
 we cut off a large part of the trade which, but for this road, 
 must go to Baltimore by its great road, and we thus secure to 
 Philadelphia a compensation for whatever trade may be diverted 
 to Baltimore from Pittsburg, instead of passing through the 
 centre of Pennsylvania. 
 
 The Hempfield is but a continuation of the Pennsylvania 
 Railroad, and if the subscription to that was prudent, this is 
 absolutely necessary to secure the profits of that great invest¬ 
 ment. 
 
 We therefore assume that these two roads are essential to 
 the prosperity of Philadelphia, as much as her Water and Gas 
 works, although in a distinct way. 
 
 With a new road from Harrisburg to tide-water at Philadel¬ 
 phia, with four tracks for coal, freight and passengers, which 
 must and will be made, the passage from here to Wheeling, 
 would be made in eight hours ; that is, Wheeling and its citi¬ 
 zens would be brought within one-third of a day of Philadel¬ 
 phia. Similar effects must be produced by the Philadelphia, 
 Easton, and Water Gap Road. 
 
 The Roman Roads under the Empire were made and sus¬ 
 tained at the public expense. In England, the parish where 
 the highway is, ought to repair of common right, and one 
 parish may be bound by prescription to repair a way within 
 another parish, and the inhabitants of a township may be 
 obliged by immemorial usage to repair all the roads within it. 
 Bridges are usually built and repaired by the county. There 
 are also Turnpike Roads which are maintained by tolls and 
 placed under the management of Trustees, or Commissioners 
 for a limited period of time. 
 
 Navigable Rivers, are also public highways, which have 
 sometimes been placed under the care of municipal corpora¬ 
 tions, or they have been charged with improving them for the 
 public benefit. 
 
 The City of London covers about 600 acres, and in 1841 had 
 
16 
 
 a population of 129,251; and the Mayor and Corporation 
 have for a very long period held and exercised the office of 
 conservators of the River Thames, which gives them a jurisdic¬ 
 tion of ninety miles of river navigation, from the Bridge of 
 Staines to Yantley Creek, for the protection of the banks of 
 the river, its navigation and fisheries, and they have a right to 
 tolls and tonnage dues for this object, which twelve years ago, 
 amounted to <£30,000, or $150,000. 
 
 They have also granted licenses to different parties to em¬ 
 bank parts of the strand or soil of the river ; but these are dis¬ 
 puted by the crown. 
 
 In connexion with this control over the largest river in the 
 Kingdom, the corporation exercises large powers over articles 
 of the first necessity imported into the Port of London. The 
 duties on Coals collected by the city are Is. Id. per ton, 
 whether brought by land or water, for coals cannot be sent 
 from Lancashire by Railroad to London without paying these 
 duties to city collectors. The gross amount of coal duties for 
 1841 was £152,887 9s. 5d., and the net £132,661 5s. lid. 
 sterling, or $663,306. If coals were to be taxed it is obvious 
 the tax should be like the excise duties, general and not local. 
 The dearness of fuel in London as compared with its price at 
 Manchester is a natural disadvantage to the manufacturing in- 
 terests of the metropolis, and it is not the interest of the citizens 
 to increase this disadvantage by duties from which every other 
 town in England is exempt. It was shown by the Hand Loom 
 Commissioners, that it has been chiefly the price of coals which 
 has changed the original seat of many staple manufactures, 
 and driven them one after the other to the northern districts. 
 
 Another cause of the high price of coals is the defective 
 wharfage, and bad harbor regulations of the Port of London, 
 which oblige the colliers to discharge their cargo into barges, 
 and to wait their turn to do this, and which then subjects them 
 to the charges of the publicans and coal-whippers and the 
 barge-owners or lightermen of the Watermen’s Company. 
 Thus it happens that while the duty on coals is but Is. Id. per 
 ton, it costs more than this sum to deliver a ton of coals into 
 
17 
 
 a barge at the ship’s side in the port, and freight by the barge 
 and delivery at some place above the bridge have still to be 
 paid for. A witness before the Coal Committee of 1836, es¬ 
 timated the loss thus incurred at 4s. or $1, per ton. 
 
 The Watermen’s Company, which is dependent upon the 
 corporation, has a monopoly of labor, embracing the whole 
 river navigation from Staines to Yantley Creek. No person can 
 ply for hire on the river, except in certain flat-bottomed ferry 
 boats and barges above Kingston who is not a member of the 
 Watermen’s Company. 
 
 The city has the exclusive right of holding markets within a 
 circuit of seven miles, and levies dues in the river upon ship¬ 
 ping, and upon coals, corn, wine, oils, potatoes, fruit, &c., and 
 it maintains by the agency of various classes of licensed 
 laborers, a monopoly of all labor connected with the measure¬ 
 ment, transhipment, and discharge of all goods landed from 
 the river. 
 
 There are fruit meters, corn meters, oyster meters, salt me¬ 
 ters, corn porters, porters of general merchandise and shifters, 
 all belonging to the fellowship of Billingsgate Porters, which is 
 under the government of the alderman of that ward. 
 
 The city dues and other charges upon corn in the Port of 
 London amount to £50,000 or $250,000 per annum. A me- 
 tage duty of Is. per ton is levied upon salt, another necessary 
 of life, of which 4d. is paid to the city. The case of Thompson 
 v. Daniel (22 Law J. Reports, Ch. 507, July, 1853), decided by 
 Y. C. Turner on the 8th January last, shows the power of the 
 oyster meters, and states also the general powers of the city 
 in these terms: “ The right of measuring all merchandise and 
 wares and other things brought into the port of London, is 
 vested in the corporation of London, exercisable by the Lord 
 Mayor for the time being.” 
 
 The Corporation has also estates in Ireland, which are ma- 
 laged by a committee of six aldermen and nineteen common 
 :ouncilmen, called the Irish Society. These estates, which at 
 >ne time embraced the whole county of Londonderry and Cole- 
 aine, were divided by James between the city and the chief 
 
 2 
 
18 
 
 trading companies, in consideration of a fine of <£40,000, paid 
 to the crown. The city having besides their own share a con¬ 
 trolling power over the shares of the trading companies, as 
 trustees for the public interest, and not only this, but the civil 
 government of the whole district. The exclusive estates of the 
 Irish Society are the undivided lands in Ulster, namely: the City 
 of Derry, with 15,000 acres, the town of Coleraine, with 9000 
 acres, the fisheries and other lands incapable of equal division 
 or proportions; and every by-law made in the towns of Lon¬ 
 donderry and Coleraine must he sent to London for approval, 
 by this committee of the Common Council. 
 
 It is not necessary to enumerate the vast real and trust es¬ 
 tates held by the corporation, but these duties, and tolls col¬ 
 lected on the river and in the port of London, were estimated 
 some years ago, to amount to at least £200,000, or $1,000,000. 
 
 As far back as 1424, in the 3d year of Henry VI., commis¬ 
 sions were authorized to be awarded to certain persons to re¬ 
 form the river Ley (one of the great rivers), running from Ware 
 to Thames, and in 1430, in the 9th year of the same reign, an 
 act of Parliament was passed empowering the Chancellor of 
 England to grant his commission to certain persons to scour 
 and amend the river Ley, in the counties of Essex, Hertford, 
 and Middlesex, with power to take tolls. This act expired by 
 its own limitation, and in 1570, in the 13th year of Queen 
 Elizabeth, an act was passed for bringing the river of Lee to the 
 north side of the city of London (2 Ruffhead, £>98). By this 
 act the Lord Mayor, commonalty, and citizens of London and 
 their successors, were authorized to make a new channel or cut 
 for the said river to pass through from the town of Ware, and 
 for this purpose, to acquire upon just compensation the land 
 necessarily taken for it in fee simple, and they were, within ten 
 years, to cut and finish the same. The corporation were 
 obliged to pay for the destruction or decay of mills, and the 
 new cut as well as the old river, was to be free to all the Queen’s 
 subjects; but the jurisdiction, conservice, rule, and government, 
 as well of the said new cut, river, and ground of each side, as 
 also the royalty of the fish and fishery of the same, and profits 
 
19 
 
 of the said ground, soil, and water, were granted to the corpo¬ 
 ration. 
 
 An act was passed in 1585, in the 27th year of the same 
 reign, granting similar powers to the Mayor and commonalty 
 of the town of Plymouth, in the county of Devon, in relation 
 to a cut from the river of Mew (2 Ruffhead, 651). 
 
 In 1605, in the third year of James I., an act was passed for 
 the bringing in of -a fresh stream of running water to the north 
 part of the city of London, and was amended by an act of the 
 next year (3 Ruffhead, 60, 72). By these acts, which are 
 nearly copies of the 13 Elizabeth, Ch. 2, it was to be done by 
 and at the expense of the Corporation of the city of London. 
 
 In 1603, the University of Oxford obtained the right of 
 returning members to Parliament (3 Merewether and Stephen’s 
 History of Boroughs, 1577), and in 1623, in the 21st year of 
 James I., an act was passed for making the river of Thames 
 navigable for barges, boats, and lighters, from the village of 
 Bercot, in the county of Oxon, unto the University and city 
 of Oxon (3 Ruffhead, 119). After reciting the mutual conve¬ 
 nience that this will be to the city of London, and to the Uni¬ 
 versity and city of Oxford, and particularly to the latter in 
 the cheaper conveyance of coals and other necessaries, and 
 in the preservation of the highways leading to and from the 
 said University and city, and in forming a navigable commu¬ 
 nication between the Thames, above and below Oxford, the 
 Lord Chancellor was authorized to appoint eight commission¬ 
 ers, four chosen by the Chancellor of the University, and four 
 by the corporation of the city of Oxford, to render navigable 
 this portion of the Thames, to make any cuts that may be 
 necessary for that purpose, and to erect wharfs, &c, in or near 
 said river or passage. 
 
 The price of land taken is to be settled either by agreement, 
 )r in the mode pointed out in the act, and the agreement or 
 >rder in each case is to be registered in the Lieger book of the 
 aid University, and to be enrolled in the Court of the said city 
 »f Oxford. The 3d section is in these words, “ and for that 
 he said passage cannot be effected and maintained without great 
 
20 
 
 charge, and the principal benefit thereof will redound imme¬ 
 diately to the University and city of Oxford aforesaid. Be it 
 therefore enacted by the authority aforesaid, That the said 
 commissioners, or the more part of them, shall have full power 
 and authority to tax and assess the inhabitants within the said 
 University and city of Oxon, or within either of them, and 
 suburbs thereof, and bodies politic and corporate within the 
 same, at such reasonable sums and payments for the purposes 
 aforesaid, as they in their discretion shall think meet, the said 
 sums and every of them to be disposed and employed for and 
 towards the bearing of the charge of making and maintaining 
 of the said passage.” 
 
 “ Sec. 4. And whereas, the said University and said city are 
 the procurers of the said passage, he it further enacted by the 
 authority aforesaid, That the commissioners aforesaid, or the 
 more part of them, by virtue of this act, shall have power and 
 authority from time to time with the consent of the Vice-Chan¬ 
 cellor of the said University of Oxford, and the Mayor of 
 the said city of Oxford, for the time being, to ordain and make 
 orders and constitutions, for the good and orderly usage of the 
 said passage, and for all locks, wears, or turnpikes thereof, to 
 be made and maintained at the charge of the University and 
 city of Oxon aforesaid.” 
 
 The 5th Section empowers the commissioners to appoint col¬ 
 lectors of the taxes, who may proceed by distress and sale of 
 the goods of any person refusing to pay the tax or assessment 
 imposed upon him. 
 
 This act is recognised in the 7th section of an act of 6 Wil¬ 
 liam III. Ch. 16 (3 Ruffhead, 584). 
 
 By an act passed in 1700,11 & 12 W. III., c. 23. (4 Ruff¬ 
 head, 60), the corporation of the city of Bristol are appointed 
 conservators of the River Avon between certain points; and by 
 the next act, c. 24 (id. 61), entitled an act to enable the Mayor 
 and citizens of the city of Chester to recover and preserve 
 the navigation of the River Dee, duties are to be paid, for 
 twenty-one years, to the corporation to make the river navigable, 
 who are to contract for the new works, and the river is tc 
 
21 
 
 be made navigable from the sea to Chester, and the channel, 
 turned. Sand, and ground enclosed, are vested in the citizens 
 for ever, who may improve the same, and take the profits for 
 maintaining and repairing the works. 
 
 An act was passed in the 32d year of George II., entitled 
 an act for improving the navigation of the river Clyde to the 
 city of Glasgow, and for building a bridge across the said 
 river, from the said city to the village of Gorbells, authorizing 
 and empowering the magistrates of the City Council of Glas¬ 
 gow, to clean, scour, straighten, enlarge, and improve the said 
 river Clyde from Dumbuckford to the Bridge of Glasgow, 
 (10 Ruffhead, 458, where it is recited). 
 
 An act was passed, 27 Geo. III. (1787), ch. 55, for enabling 
 the magistrates and town council of Paisley, to improve the 
 navigation of the river Cart, and to make a navigable cut or 
 canal across the turnpike road from Glasgow to Greenock. 
 
 In other countries, the same policy has been pursued under 
 different forms of Government. In the year 1201 the City of 
 Padua made a canal of 11 miles long, called Bassanello, and 
 others at subsequent periods. 
 
 In France, the great Canal of Languedoc, was made at the 
 joint expense of the King, and the province of Languedoc, and 
 in 1753, the cost of the canal between Aire and St. Omer was 
 valued at two millions. The King charged himself with one 
 half, and the rest was imposed upon the provinces of Artois, 
 Flanders, and Hainault. 
 
 The railway system has been introduced to any extent in 
 France, only within the last few years. The City of Havre 
 guaranteed an interest of five per cent., on a certain portion of 
 the stock of the Havre and Paris Railway, and most of the 
 French cities have contributed in the same way to various 
 'ailways, either by guaranteeing a minimum income from a 
 :ertain proportion of the shares, or by giving a direct bonus 
 o the Company. In this they have acted in all cases under 
 pecial laws. The departments have several times given a 
 tonus to such enterprises the product of an additional centime 
 elded to the tax. 
 
22 
 
 A similar state of circumstances has produced a similar 
 policy on this side of the Atlantic, which is peculiarly striking 
 in the instance of Canada, whose laws and customs are both 
 French and English. The debt of this province, principally 
 incurred for public works, is about $22,000,000, and it will be 
 increased by the law authorizing the payment of $12,000 per 
 mile, for Railroads. Public works in Canada, from necessity, 
 are chiefly undertaken by the government or municipal cor¬ 
 porations, and are to a very limited extent the result of pri¬ 
 vate enterprise. The consequence is that there is a large 
 amount of local indebtedness, which may probably be estimated 
 at two or three millions of dollars, the interest of which must 
 be provided for by local taxation. 
 
 The Great Western Railroad of Canada, is 227 miles long, 
 and is met by a branch road leading from Buffalo, called the 
 Buffalo and Brantford Railroad. The Central Railroads of 
 New York, subscribed for the stock of the Great Western, to 
 the amount of $493,500, and municipal subscriptions were 
 made in Canada, to the amount of $550,000, whilst the City 
 of Buffalo subscribed $150,000, to the stock of the Buffalo and 
 Brantford Railroad, the whole of whose works are in a British 
 Province. 
 
 In turning to the United States, we find the same policy 
 pursued, and by adverting to the Appendix of Cases, and to 
 the Appendix of Laws, the Court will see that twenty-three 
 States at least have passed laws of the same identical cha¬ 
 racter, and that in ten (now eleven) of these states, decisions 
 have been pronounced in favor of their constitutionality. 
 
 It is too late, therefore, upon any abstract ground, depend¬ 
 ing upon the mere theory of our form of government, or what 
 is sometimes termed the genius of our institutions, to deny 
 these powers to the Legislature of an independent sovereign 
 State of this great confederacy. Our institutions are the pro¬ 
 duct of centuries of civilization, and what has been done at all 
 times, in all countries, and under all forms of government, can¬ 
 not now be stigmatized as violating the inalienable rights of 
 man, or the first principles of natural justice. 
 
23 
 
 The General Government took the lead, in 1828, in this kind 
 of legislation, and although the power of Congress to subscribe 
 to works of internal improvement has since been denied by 
 very high authority, yet the right to enlarge the powers of 
 municipal corporations in the manner provided in the act of 
 that year, has never been questioned, and under the recom¬ 
 mendation of General Jackson in his annual message of 
 December, 1835, that such relief or remedies should be provided 
 as are consistent with the power of Congress, in relation to the 
 pecuniary concerns of the District of Columbia, the Act of 20 
 May, 1836, which assumed these specific debts on behalf of the 
 United States, was passed and met the approval of that dis¬ 
 tinguished statesman. 
 
 Railroads, like all other great public works requiring large 
 capital, can only be built by combined or corporate wealth. 
 They may be made either by, 1. Private enterprise taking the 
 form of Railroad corporations ; 2. By the State; 3. By muni¬ 
 cipal bodies; or, 4. By a mixture of either or both of the lat¬ 
 ter with the first, by State or municipal subscriptions, or loans, 
 or guarantees, to railroad companies. 
 
 In a new country where wealth has not been accumulated by 
 a succession of centuries of industry, public works, whether of 
 a general or local character, have been sometimes undertaken 
 by the State, and except in the instance of New York, and per¬ 
 haps Ohio, with very indifferent success; the commonwealth 
 being generally left with unproductive improvements, a heavy 
 debt, and onerous taxation. In some States, the credit and 
 resources of the Government have been exhausted upon canals, 
 and no means are left at their disposal to make railroads, how¬ 
 ever essential they may be to the general prosperity of the 
 community. 
 
 There is not sufficient accumulated private wealth in the 
 United States to make the 360 railroads which are completed, 
 or are in progress within her limits, and if the States cannot 
 furnish the necessary aid, it is clear that they must stop, unless 
 the municipal divisions of States, which are benefited by them, 
 are permitted to contribute their cash, or their credit to their 
 
24 
 
 erection. The whole improvement of the country depends 
 upon these municipal subscriptions or contributions, which are 
 not now required in England, because there, private capital is 
 in great abundance, and can be commanded at a moderate in¬ 
 terest for any enterprise which promises any increased profit. 
 
 Whilst State improvements have been often unprofitable, it 
 has been found that the results of private enterprise aided by 
 municipal wealth, but not controlled by it, have been extiemely 
 fortunate, and it is only necessary to point to one of our own 
 works : the Pennsylvania Railroad, in which Alleghany and 
 Philadelphia have six millions of dollars of corporate subscrip¬ 
 tions, as a most brilliant example. 
 
 In Georgia, the most flourishing State of the South, both in 
 finances and resources, its internal communications by railroad 
 which are of the very best kind, owe their origin to the municipal 
 enterprise of Savannah and Macon, which cities, as far back 
 as 1833, became, with their associates, the Central Railroad 
 and Canal Company of Georgia. The city of Savannah in 
 1840, had but 11,214 inhabitants, and in 1850, 27,841, an in¬ 
 crease of 16,627 souls, owing undoubtedly to its railroad con¬ 
 nexions with the interior. 
 
 In Maine, the City of Portland, with a population in 1850 
 of 26,819, gave its credit to the amount of $2,000,000 to the 
 Atlantic and St. Lawrence Railroad, which begins at Portland 
 and ends at Montreal, passing through three States and a Bri¬ 
 tish Province. This railroad, which is now completed, and was 
 opened on Tuesday, the 19th of July, 1853, is to be connected 
 with Montreal by a bridge over the St. Lawrence, which will cost 
 $7,000,000, and there connect with Canadian railways which 
 are to be carried to Lake Huron. So much has been done at 
 the extremities of the Union by two small cities, towards their 
 own prosperity, the one making itself the great southern depot 
 on the Atlantic, and the other, pouring into its harbor the 
 large and growing trade of the Canadas, which must make it 
 the shipping port of the East. 
 
 In Maryland, the whole railroad system has depended en- 
 
25 
 
 tirely upon the city of Baltimore, which has extended and is 
 extending its subscriptions, its guarantees, and its loans to the 
 railroads of its own and its sister States of Virginia and Penn¬ 
 sylvania. 
 
 In Virginia, the system of subscriptions by counties, cities 
 and boroughs to railroads, has been carried to its utmost ex¬ 
 tent by general and special laws, and in South Carolina the 
 city of Charleston has based its subscriptions upon a large clause 
 in its charter. 
 
 In Rhode Island, the city of Providence has subscribed to 
 the PiovidQnce, Hartford, and Fishkill Road, which passes 
 thiough two States, and into a third State. In Louisiana, 
 Alabama, Tennessee, Mississippi, and Kentucky, the same 
 system is established, and is rapidly progressing. 
 
 The same may be said of Illinois, Wisconsin, Iowa, and Mis¬ 
 souri. 
 
 In Connecticut, the question was settled ten years ago, and 
 in New York, it has not been mooted since 1840. In this last 
 State they are using municipal subscriptions to a very large 
 extent, to secure to themselves the trade of the Lakes, of the 
 Susquehanna, of Canada, and of the West; and it admits of 
 no doubt that if a Pennsylvania Tribunal were to declare such 
 subscriptions unconstitutional, it would surrender up to New 
 York and Baltimore, all that internal commerce, which by a 
 judicious Railroad system would find its way through our in- 
 teiioi to the waters of the Delaware, and to the metropolis of 
 the State. 
 
 The Ohio Railroads have been built by its counties, towns, 
 and cities, and such is also the case with Indiana, and these 
 two States having as they think incurred a sufficient amount of 
 state and municipal debt, have by their late constitutions pro¬ 
 hibited all increase of either, for the purposes of internal im¬ 
 provement. 
 
 In some of the states, the power to incur debts is limited or 
 restrained by their constitutions. 
 
 But the history and decisions of all, so far as we know them, 
 prove that (if not limited by express provisions in their consti- 
 
26 
 
 tutions) the legislative power to borrow money, and to tax, is 
 unlimited, and its exercise depends upon the discretion of the 
 Legislative body, and that portions of the same power may be 
 intrusted to municipal corporations, limited only by the same 
 discretion, neither of which can be the subject of judicial re¬ 
 vision. 
 
 The province of Pennsylvania was settled by William Penn, 
 a philosopher and statesman, intimately acquainted with the 
 institutions and history of his native country. Our local 
 municipal divisions were accordingly modelled after those of 
 England—we had counties and townships, with a few towns 
 corporate, such as the city of Philadelphia, and the boroughs 
 of Chester, Bristol, and Lancaster. 
 
 The roads were made and repaired by the supervisors, at 
 the expense of the townships, and bridges were either built by 
 them, or by the county, where it required more expense than 
 it was reasonable that one township or two adjoining townships, 
 should bear. On the 25th October, 1701, William Penn grant¬ 
 ed his charter to the city of Philadelphia, which occupied a little 
 more than double the area of the city of London, and he in¬ 
 serted in it two remarkable provisions, copied undoubtedly from 
 the charter of the metropolis of England. 
 
 The first was “ That the Sheriff of the said City and County, 
 for the time being, shall be the water-bailiff, who shall and 
 may execute and perform all things belonging to the office of 
 water-bailiff upon Delaware River, and all other navigable 
 rivers and creeks within this province.” 
 
 The second is in these words, “ And I do, for me, my heirs 
 and assigns, by virtue of the King’s letters patent, make, and 
 erect and constitute the said city of Philadelphia, to be a port 
 or harbor for discharging and unloading of goods and merchan¬ 
 dises of ships, boats, and other vessels; and for lading and 
 shipping them in or upon such, and so many places, keys, and 
 wharves there, as by the Mayor, Aldermen, and Common 
 Council of the said City, shall from time to time be thought 
 most expedient, for the accommodation and service of the 
 officers of the customs in the management of the King’s affairs, 
 
27 
 
 and preservation of his duties as "well as for conveniency of 
 trade.” 
 
 “And I do ordain and declare that the said port or harbor 
 shall he called the port of Philadelphia, and shall extend and 
 be accounted to extend, unto all such creeks, rivers, and 
 places within this province, and shall have so many wharves, 
 keys, landing-places, and members belonging thereto, for land¬ 
 ing and shipping of goods, as the said Mayor, Aldermen, and 
 Common Council for the time being, with the approbation of 
 the chief officer or officers of the King’s customs shall, from 
 time to time, think fit to appoint.” 
 
 The conservancy of the river Thames, which resides in the 
 Mayor and Corporation of London, is the example for vesting 
 a portion of a similar power over the rivers and creeks of 
 Pennsylvania, in the principal officer of a single county, and 
 another portion of it in the Corporation of the City of Phila¬ 
 delphia, thus extending their jurisdiction and authority far 
 beyond the defined boundaries of the county or city. 
 
 Acts were passed in 1761 and 1771, for improving the navi¬ 
 gation of the rivers Schuylkill, Delaware, Lehigh, and Susque- 
 hannah, and commissioners were appointed to collect subscrip¬ 
 tions, and to apply the moneys received to such improvements. 
 Some sums were collected and expended on the Delaware, 
 but these and all other works were interrupted by the Revolu¬ 
 tion. 
 
 Examinations of the State and its rivers having been made 
 by commissioners appointed for the purpose, the Legislature, 
 on the 13th of April, 1791 (4 Bioren, 46), passed “An act 
 to provide for the opening and improving sundry navigable 
 waters and roads within this Commonwealth,” by which the 
 Governor was authorized to contract with individuals, or with 
 companies, to improve certain rivers and streams, and to open 
 certain roads, and certain specific sums were appropriated 
 out of the treasury of the State, for the several purposes 
 specified. 
 
 On the 21st of March, 1808, an act was passed for the im¬ 
 provement of the State (4 Smith, 495), by which the Governor 
 
28 
 
 ■was authorized to subscribe to the stock of certain turnpike 
 companies, and on the 2d of April, 1811, two acts were 
 passed, one to encourage the constructing of certain great 
 leading roads within this Commonwealth, and the erection 
 of bridges at Ilarrisburgh, Northumberland, Columbia, and 
 McCall’s Ferry (5 Smith, 270), which appropriated the sum 
 of $825,000 ; and the other making appropriations for certain 
 internal improvements (5 Smith, 273), which were generally 
 roads, and of a merely local character. 
 
 On the 24th March, 1817, another act was passed, “ making 
 appropriations for certain internal improvements” (6 Smith, 
 478), which included subscriptions to turnpike roads, State 
 roads, roads, navigation companies, improvements of creeks, 
 the erection of piers at Chester, and wharves or embankments 
 at Kitanning ; and the County Commissioners of Armstrong 
 county were “ authorized to subscribe and pay out of the 
 County Treasury such sum of money as by them may be 
 deemed expedient, to be applied in aiding the erection and 
 completion of said wharves or embankments.” (Id. 483.) 
 
 One of these subscriptions was to a turnpike compauy in 
 the State of New York. (Id. 482.) 
 
 On the 26th March, 1821, was passed “ An Act for the 
 improvement of the State” (7 Smith, 393), which contained 
 subscriptions to the Union Canal Company, to various turn¬ 
 pike and bridge companies, appropriations to improving the 
 Ohio from Pittsburg to Wheeling, the Susquehanna and its 
 branches, the Delaware, the Beaver, the Youghiogeny, and 
 Penn’s Creek, and to making and improving certain roads and 
 State roads. There were other laws passed in succeeding 
 years, making appropriations of a similar character, and also 
 to railroads ; so that, on the 1st of January, 1842, the State 
 owned, at par, 
 
 Turnpike stock, ... $2,328,698 89 
 
 Bridge stock, - - - 514,350 00 
 
 Canal Navigation and Railroads, 1,182,316 47 
 
 $4,025,365 36 
 
29 
 
 The year 1820, was one of great depression in Pennsyl¬ 
 vania, but upon the gradual renewal of confidence, the State, in 
 1826, in imitation of New York, commenced her system of 
 internal improvements, which, with previous expenditures, has 
 fastened upon us a debt of $40,000,000. 
 
 We borrowed money to make the works, and to pay the in¬ 
 terest on our loans, and we laid no taxes to pay either princi¬ 
 pal or interest. We made our canals upon a gradual expansion 
 of the currency. New York had made hers upon a reduced 
 circulating medium, when labor was cheap and wages low. We 
 made ours at a vast expense through a mountainous region, and 
 with an intermixture of canal and railroad, whilst theirs was 
 only a continuous big ditch through a level country. 
 
 A small tax was laid, but the recharter of the United 
 States Bank repealed it, and gave a new impetus by its broad¬ 
 cast subscriptions to wild and visionary railroads and canals. 
 The ultimate consequence was, the destruction of the State 
 credit, its inability to meet its interest, the depreciation of the 
 State loans, the sale of its available stocks, and the offer to 
 sell the public works. 
 
 The combined effect of State debt and State taxation has 
 been to render unavailable the State credit for the great rail¬ 
 roads of the commonwealth, and to make their construction 
 entirely dependent upon the municipal corporations benefited 
 by them; for the same general causes, united with the losses 
 sustained by our citizens in the United States and Girard 
 Banks, and in the Banks of the Southwest, prevented that 
 accumulation of private capital, which would be sufficient of 
 itself to complete them. 
 
 We have carefully collected the laws of Pennsylvania, autho¬ 
 rizing municipal subscriptions, and the Court by inspecting 
 them, will see that they are inseparably interw'oven with the 
 interests of every section of the commonwealth, and have 
 become a fixed and settled part of our financial system. 
 
 When the State ceased to subscribe to turnpike and bridge 
 companies, authority was given to the commissioners of coun¬ 
 ties to subscribe to them, and similar powers were aftenvards 
 
 m ■ 
 
 I 
 
30 
 
 extended to the supervisors of townships in regard to turn¬ 
 pikes. The same policy was pursued in relation to Plank Road 
 Companies. 
 
 The State had a surfeit of canals and railroads, and the same 
 may be said of the individual citizens of Philadelphia, who 
 had invested their private capital in the Chesapeake and De¬ 
 laware Canal, the Union Canal, the Schuylkill Navigation, the 
 Lehigh Navigation, the Reading Railroad, the Philadelphia, 
 Germantown and Norristown Railroad, the West Philadelphia 
 Railroad, the Tide Water Canal, the Yalley Railroad, and the 
 West Chester Railroad, all or nearly all of which works paid 
 no dividends in 1846, when the first subscription was made to 
 the Pennsylvania Railroad Company by the city of Philadel¬ 
 phia. We can therefore say with entire truth, that these mu¬ 
 nicipal subscriptions to railroads are absolutely necessary to 
 develope the natural resources of the State, to maintain its 
 trade, increase its wealth, and enrich its citizens, and that the 
 greater portion of all these advantages must result to that 
 city which is the eventual terminus of these lines, and into 
 whose lap must be poured the produce of the great West. 
 
 All municipal corporations, “ being mere organizations for 
 public purposes, are liable to have their public powers, rights, 
 and duties modified or abolished at any moment by the Legis¬ 
 lature.” (10 Howard, 534.) But the Legislature, in passing 
 these laws, have reposed a discretion in the city of Philadelphia 
 to subscribe or not, as they may deem most expedient for their 
 interests, and those of their citizens. 
 
 What, then, have they done ? Exactly what the Common¬ 
 wealth has formerly done itself, subscribe to two railroads, 
 incorporated by Pennsylvania, and that in conformity with the 
 settled policy of this State, which at one time permitted the 
 cities of Lancaster and Pittsburg to make or repair portions 
 of her own great lines of canal and railroad. 
 
 In what possible point of view, then, can these acts be called 
 unconstitutional ? If they are so, one hundred laws must be 
 torn from our statute book, and at least 1500 similar subscrip¬ 
 tions in the United States must be declared void. 
 
31 
 
 If they are unconstitutional, the result must inevitably be, 
 not simply the stoppage of the various railroads now in the 
 course of construction, but that every act of taking stock, bor¬ 
 rowing money, and issuing bonds, must he declared null and 
 void. 
 
 Pennsylvania has suffered enough for repudiation, unjustly 
 imputed to her ; hut let it once be announced that her muni¬ 
 cipal subscriptions, sanctioned, as they have been, by the legis¬ 
 lative, executive, and judicial functionaries of the State are 
 unconstitutional, and it will be the last time that a Pennsyl¬ 
 vania loan, of any kind, will be negotiated in a foreign market. 
 
 Sidney Smith, if he were alive, could wish us no worse fate. 
 

 
 
 
 
 
 
 
 
 
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Trials. 
 
 L99146 
 
 DATE 
 
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