Review of the "Consideration" of the
Application rrade by the Delaware and Raritan
Canal Corn; any.
HE
Zll I
N5&D4
"X.cL
Of the "Consideration" of the Application made by the
Delaware and Raritan Canal Company for the
return of the bonus, inserted in the "Emporium-"
hszdh
I.IBRAKT
»UREAU or rU.VAAY. ECONOMIC*
H i u.buli
*"XO
WLT^ÏIÊW
Tb« consideration of thp appliea'ion made by the tîelaware
and ft wit,an Canal Company, for the return of the Bonus,
inserted in the " Emporinm," reviewed.
We have seen an elaborate argument in the Emporium, thlî
object of which is to show the right and propriety of the Le»
gislature of New-Jersey, in taking and retaining the bonus of
i§ ' 00,0 )0 from the Delaware and H iritan Canal Company.
This is manifestly the production of some one belonging to the
minority of-'the Company, who are opposed to the wishes of a
larg • majority, and who lately caused strenuous exertions to he
made before the committee, to prevent this bonos from being
given up to the lawful owners. Many topics are advanced,
the object of which is to excite prejudice, and to work upon the
fears of those for whom the address is intended.
An allusion is mad; to foreigners, who are anxious for
return of this bonus. In the, arguments presented before the
committee, it was stated by the minority party, that a majority
of the Jersey men who were managers of this Company, were
in favor of acting under the charter, and adopting the Penn¬
sylvania law witli its onorous restrictions. By the allusion to
foreigners, no doubt it is intended to hint at this statement and
to insinuate that the application of the company for a return of
the this bonus, is not entitled to the gracious consideration of
the Legislature.
We are informed, however that it is uot true that a majority
of the New.Jersey managers were in favor of the state retain¬
ing the bonus—unless they count among the numoer a gentle¬
man who has never voted, or even taken his seat as a mana¬
ger ; and who, though he occasionally passes his titije. in N.
Jersey, is a citizen of South Carolina. Of the ten N. Jersey
managers, five are with the majority in their petition for return¬
ing the bonus. Of the remaining five only three have voted.
Among these five only three re stockholders—those three
holding only one hundred and fifty-one shares, and one of them
only one share. Persons having no interest, or a very small
int rest in a concern, and from their proxim ty to tire canal
having a deep personal interest injits completion on the present
route, may be ready to jeopard th > inier As of the 1 irge stock¬
holders in constructing the large canal imposod upon them by
the "Pennsylvania Legislature. The present application is
made by a large majority of the managers, supported by the
stockholders owning five thousand, seven hundred and sixty
six shares out of the six thousand into which the stock is di¬
vided.
If, however, it were true that a majority of the New-Jersey
stockholders and managers were on the opposite side but were
äu the minority, the argument attempted to he deduced from it
ought to be disregarded. A New-Jersey Legislature ought
not to listen for a moment to such a distinction In examining
the claims of justice, they will not stop to inquire whether those
claims are pressed upon them by Jerseymen or foreigners. In
communities barbarous or half civilized, the claims of foreign¬
ers, <o be sure, are disregarded. Among the Indian tribes, in¬
di» iduals, though observ antof the claims of justice among them¬
selves, think it no harm to steal or rob from strangers. When
a father sends his boy to the mount to invoke the Great Fa¬
ther of spirits, he directs him to pray that he may become au
able warrior and expert to steal horses from strangers ¡Such
doctrines are banished from civilized society, whatever the
practice may be.
But who are these foreigners ? They are citizens of neigh¬
bouring states. The constitution of the United States provides
that they are in New-Jersey entiled to all the privileges and
immunities of her own citizens, Is a Legislature of N. Jersey
called upon to defy the constitution of the Union, that they
may grasp this bonus? It is a general and well settled prin¬
ciple, that in all corporations a majority must prevail. Under
this charter, the citizens of neighbouring states were invited to
euhscribe. The charter contemplates the introduction of these
foreigners, as they are invidiously termed. If we could for a
moment believe, that the. Legislature did not feel the obligation
of these principles, we would address their interest New-
Jersey is a small agricultural state, having but few large capi¬
talists. When charters are created by our Legislature, for im¬
portant and great undertakings we must loo'«» for stockholders
among the capitalists of neighbouring states : will such capi¬
talists take our stock, if odious arm invidious distinctions are
drawn between them and native citizens of New-Jersey ?
They will abjure a government and i s concerns, in which they
cannot confide. This instance is another proof of the maxim,
that " honesty is the best policy " Public credit is tender, and
should be carefully preserved. It should not suffer injury even
by if elay in advancing the claims of justice,
An artful addrpss is also made to t he fears of sotoe men.—-
The topic of darling popularity is paraded forth as a bugbear.
This bonus is called the people's money, and of those who are
disposed to vote away the people's money* it is said u let the
people know them, and they will apply the remedy, and ban.
is h them from their confidence." And is it possible that a le¬
gislature can be gravely called upon when investigating pri.
vate rights and the claims of individuals, to suffer such consid.
erations to influence their determinations ? Upon such a sub¬
ject, however, the most timid have nothing to fear. They should
examine the subject fairly, get all the light they can, and do
what upon the best consideration of the case they seriously be.
lieve to be right, and they will find that there is a moral sense
in the community that will support them. The shouts of the
interested, living on the contemplated route of this canal, must
not he mistaken for the voice of the people. The minority par¬
ty in this address, come out boldly, and claim this bonus as ab¬
solutely belonging to the state and insist that the legislature
'cannot, without a violation of duty, cause it to be restored.—»
We admit, that if this really be the people's money, or in oth-
er words without canting, if it belongs to the state ; upon fair
principles, the legisla ure have a right to retain, and the expe¬
diency of retaining it, even then, must under all the circum-
stances, be left to their discretion. This ground, however, has
been bu lately taken. '• Ever strong r as the storms advance,"
they become more bold and rapacious from opposition. In the
ingenious course of argument which they caused to be exhibit,
ed b tore the committee, thev distinctly admitted, that if the
stockholders came forward individually, and very respectfully
petitioned for a return of the bonus, without impeaching the
charter, they ought to have received it from the hands of the ie-f
gislature. They admitted, that inasmuch as the canal required
under the Pennsylvania law, would absorb their whole capital,
and require a large addition to it, in justice the stockholders
could not be required to go beyond the means originally con¬
templated, and were fairly authorized to abandon tiie concern,
and to have the bonus: Upon what principles? Surely, not
that the legislature had a rignt to indulge their liberality, and
give away the " people's money," The objection was, tnat the
Company petitioned, and not individual stockholders ; and
thai they claimed it as a right, on the ground that tue charter
is void. Now it seems that the bonus must be retained, because
the canal, lettered as it is with Pennsylvania restrictions, must
be constructed, and the completion of it depends upon the re-
tentiou of the bonus. The grasp of a Shytock mnst therefore,
be fastened upon the bonus.
•*
We purpose to shew, in answer to the arguments of this ad-
dress, that t e bonus does not belong to the state. but. !" t e
Company : an«! that it ought, in law and justice, to be restored
to those who are, entitled to it. •
We mean to prove the following propositions :•—
1st. Thattlie assent of Pennsylvania, as req ir< d in tin' N".
Jersey charter, has not been so granted and received as to be
obligatory upon the Company.
Sil. 'Chat if this assent has not been so granted, the state is
not entitled to the bopus.
The order in which they are entvsi 'ered is immaterial ; we
shall therefore first take up the latter proposition.
The Company is not liable to piy this bonus, at all events;
and to take upon hemselvcs the risk of getting the consent of
Pennsylvania By the .'0 h section of the charter, the bonus
is made due and payable to the state ninety days after this
consent is obtained : which is required to be obtained by the
Si •st o' June, :8, 6 ; of course, if no valid or binding consent
from Pennsylvania be obtained by that period, the mone is
not cue, and the charter is at an end.
This doctrine docs not seem to tie disputed by the address
under consideration ; but the main effort of this address is to
show that the requisite consent on the part of Pennsylvania has
been given, and accepted by the Company.
The consent contemplated by the charter, was an unquali¬
fied and absolute one ; unless the company choose to accept of a
conditional assent, and the conditions are such that they may
be performed by the company, under the charter. They are
tin er no obligation to get a new charter.
No conditions are adverted to in the, charter. They are sim¬
ply required to obtain the consent of Pennsylvania, for the use
of these waters. This consent upon every fair principle of con¬
struction, should be absolute, unless conditions are annexed to
it by the charter.
Here we are at variance with the positions laid down in the
address. It is there stated, that the company were hound to
accept of a conditional assent from Pennsylvania, because the
legislature of New Jersey are in the practice of attaching con¬
demns to their charters. But where no conditions are inserted
in the charter, have they ever been in the practice of making
them afterwards, under the idea that they might he reasonably"
inserted for the purpose of laying hold of a bonus?
It is further stated, that this consent might he conditional,
because Pennsylvania has equal and co-ordinate rights with
New-Jersey, ia the waters of the Delaware, flowing between
5
ihe two states, on our side of the central line of the river, and
therefore, thai she had a rieht to follow those waters over New
Jersey soil, and there to legislate and impose restrictions.—
This, it is said is true, as a general proposition, and if not,
ye' it is adopted by New Jersey in this charter, and she is now
estopped from denying it.
e deny that it is true as a general proposition; on the
contrary, we contend that the doctrine laid down by the com¬
mittee in their report, is 'he sound one. New Jersey having
the exclusive right of soil on her sitie, to the middle or central
line of the river, is Ihe own« r of the water flowing over it, sub¬
ject to the rights of use by Pennsylvania, for tlie purposes of
navigation. New -Jersey has the exclusive right to the enjoy,
men! o; the water s on her ow n soil, subject to that right of use
on the pari o( Pennsylvania. Vattel lays down the position,
that where a ra ion.has a general light to use the waters flow,
ins on 'hi soil of another, the latter may appropriate them even
to 'lie injury of the subordinate and secondary right of the for.
mer. as for instance the right of fishery. Hence it follows, that
N; w-Jersey has a right to use these waters, and apply them
to every purpose she may think proper, without any attack on
the sovereignty of» the sister state, provided she does not seri¬
ously and practically injure that common right of navigation.
It is not true either, that New-Jersey, by this charter, has
•conceded to Pennsylvania an equal right in that water on our
side of the central line. '1 here is not a word like it in the
charter. It requires the Company to get the consent of Penn¬
sylvania : why ?—merely as an act of precaution, to prevent
difficulty or collision hereafter, in case it should be said that
the navigation should be materially injured by the c.tnal. The
charter then merely admits the pre-existing right of Pennsyl¬
vania, as it stood ; and does not at all enlarge that right. The
resolution of the New-Jersey Legislature lias beeu referred to,
requesting Pennsylvania to co-operate in extending and im¬
proving the navigation of the two states. But how was she to
co-operat? by legislating on our soil ? Impossible! A re¬
ference to the charter will shew the co-oper ition required of
her—which was, to gL e her assent to take the waters from the
Delaware : not to follow those waters, and legislate on New-
Jersey soil.
We admit, with the author of the address, that the law of
Pennsylvania is founded on the idea that she is a complete co-
tenant with N. Jersey of the waters on the soil of N. Jersey.
But New-Jersey has not admitted it, and will not : unless by
hugging this bonus to her bosom, she adopts the Pennsylvania
law and all its priaciplts;aud thereby, like Esau, barters away
6
lier right. The Legislature of New-Jersey should serîously
refl ci before they < on;promit the rights of the state, and sport
with the public domains.
This favourite doctrine then of the author of the address be¬
ing refuted, the whole argument built upon it falls to the ground.
Ti e assent of Pennsylvania was a mere act of comity, intended
to guard against the possibility of collision ; and no member
of the Legislature, who contributed to the creation of this char-
ter, had the most distant idea that Pennsylvania, under the
pretpnce of granting her consent, would undertake, by concur¬
rent Legislation, to regulate and bind up a >iew-Jersey cana^
exclusively on New-Jersey soil.
The conditions ano restrictions of the Pennsylvania law are
of two kinds. 1st. Such as the Company may perform, if they
choose to take the law clogged with these restrictions. Sd.
Such as are beyond the control of the Company, and are re¬
pugnant to the provisions of the charter. In respect to the
former, if the company have agreed to them, they are bound by
them ; in respect to the latter, it would he beyond the power
of the company to agree to them.
Of the first kind are those provisions of the Pennsylvania
law. regulating the size of the feeder and canal and locks-
requiring the canal and feeder to be of certain dimensions, and
the canal to be extended below the middle grounds,or the Rar-
itan cleared out so as to be eight feet deep there, at all times,
forever ; diminishing the amount of tolls ; confining the Waters
of the canal exclusively to the purposes of navigation ; and
prohibiting any manufacturing or mining concern.
It is manifest the company have not adopted and assented
to any of these restrictions by any resolution, or any other cor¬
porate act. None such is to be found in any of the records of
their proceedings But it iá said the company have accepted
of them by their acts, and the acts of thetr agents, regularly ap¬
pointed by them. The acts of the Company referred to, are,
that the stockholders subscribed for stock, were organized,
raised the bonus and paid it into the hands of the treasurer of
the state, and proceeded to survey the route of the canal.
It is not and will not be pretended, that in fact Pennsylva¬
nia had by her first law given any assent to the use of these wa¬
ters. That law required an approval of the route by the Uni¬
ted States' engineers, and that letters patent should he issued
by the Governor of Pennsylvania : and then, and not till then,
was it lawful for the Comp ny to use the waters of the Dela¬
ware. . These letters pateut were never issued, and the law
was repealed.
7
"ft is said, however* that these various acts and proceeding
©f the company, recognized the restrictions in that law, and
authorized the insertion of them in any subsequent act of
P-nnsylvania. The plain and obvious answer to all this rea¬
soning. is, that the company had till the >st. of June, t8¿6, to
get the consent of Pennsylvania; they were informed, and
¡had reason to believe they could procure, and thev intended
to procure, if possible, a law of Pennsylvania, on more favor¬
able terms. See the answer of Judge Simpson, their Pre»,
sident, to the committee, at the next session of the legislature.
That restriction is likewise shown by their resolution appoint¬
ing agents to go to Harrisburg, to obtain a law on more favor¬
able terms.
The company, by organizing themselves, and acting as a
corporation, did not impliedly admit the assent of Pennsylva¬
nia, because they had a right immediately to do every thing be*
fore that assent was given, except to construct the feeder, and
to improve the navigation of the Delaware. This assent of
Pennsylvania under the charter, was a condition precedent to
these two acts alone.
We admit the company were not bound to pay the bonus to
the treasurer, till 90 days after this consent should be obtained*
But suppose, that with a view to show their desire to execute
the work, and to impress upon the legislature of Pennsylvania,
that they were in earnest, and hence to be the better enabled
to obtain her consent on satisfactory terms, they pay it before¬
hand ; that afterwards using every exertion to obtain that con¬
sent oti satisfactory terms, they do not succeed, but the terms
imposed are unsatisfactory, and are rejected by them. Will
any lawyer, will any honest unprejudiced man, say they are
bound to take that consent, with any terms and restrictions
which Pennsylvania may think proper to impose, and which
the company deem unsatisfactory and ruinous to their interests
to adopt?
When Pennsylvania imposed these terms, the Company-
had a right to judge of them, and reject them if they thought
them destructive of their interests ; and so deciding, they did
reject them. They have never deputed their right of deciding
tipon that subject, to any set of men ; and New-Jerspy will
sot say that they were bound to take such terms as Pennsvl-
vauia might choose to dictate. The legislature of New-Jersey
shewed their opiuiou upon this subject, at their last session,
when thry refused to receive this bonus, on the ground that
Pennsylvania had not yet given her assent. The opinion of the
General, which was adopted, »hewn tlsi,s, which opi-
s
aion contains the flowing langnage. " J am of opinion that
such consent is not yet obtained agreeably to the m<-a. tug and
spirit of the charter." It is said that the legist.-ituve «»«' N« w-
Jersey, only «aid tiiat such an assent was not obi-dm-d ts
Would render it necessary for'hem to elect to take stock at
i! at session. The assent of Pennsylvam wa- either gi en, «r
it was not. If binding on the one party, if w s on the other.—
But the state of New-Jersey did not mean o give any qua iff d
opinion upon the subject. They adopted the repnr' • -f e:r
committee, from which the follow irg is «n extract. ^ Ji d your
snmmittee also find in the h nds of the tre surer one hundred
thousand dollars, received by him from he Delaware t. ni
liaritav Canal Company which sum wn.L become tuf. prop¬
erty of the state, when it is ascertained that 1he require-
ments of the charter of the said Delaware and Haritnn ( anal
Company are fully complied with ! ! if the company h.<ve
paid the bonus beforehand, under the expectation timt they
should succeed, and the better to enable them to succeed by
the first of June, t8it>, in getting the cousi n* of Pet nsvlxania
on satisfactory terms, and they do not succeed, the charter try-
its own provisions, falls to the ground—the consideration on
which the bonus was paid, fails, a> between individuals when
money has been paid on a contract, (and it is immaterial,
■whether paid on the last day allowed for payment, or before ;)
and the cotitract afterwards fails through some omission of the
opposite party, or of some third party, whose concurrence was
essential, such individual is entitled to recover hack ids mo.
3iey. In the language of a celebrated Judge, ex œquo et bono,
it ought to be refunded. In suclr a case, no nonest man would
hesitate to disgorge it. States and empires; however, sometimes
u feel power, and forget right."
It is said the company adopted the provisions of the Penn¬
sylvania law, regulating the size of the canal, because the com¬
missioners appointed under the charter, recommended the same
dimensions. There is not one word in the charter, authorizing
these commissioners to regulate the size of the canal. They
were to direct its location. Their report was not considered
final, either by themselves, or by the company, but was kept
out of the office of the Secretary of state, where the final re¬
port is required to he lodged, that it might be reviewed—yet
strange to say, the company are to be bound by an inchoate
act of the commissioners appointed—not by them, but by the
State, and exceeding their authority.
It is said, the company are bound by this report, because in
their resolution, they anointed a committee to get the assert
ot Pennsylvania to enable them to coustruct the canal. What
9
csttal? A plain and unsophisticated answer would he, the ca*
■nal mentioned in the charier, unless some other was expressly
mentioned : vet, by a strained and forced interpretation, it ie
said they meant a canal of the size reported by the commie*
sinters, whose report was at the time incomplete, and who had
no riujht or authority to regulate the diinensiotfi of the canal.—
A le jUlature anxious to do an act of justice, must resist such
reasoning as tita».
I' is further said, that the legislature of N. Jersey did not in.
their charter have in view, a canal of the size reported by their
comutisioners at the same session, which was a mere commet**
dal can »1. -0 feet by 1, and estimated at 8850.000, near aoout
the capital allowed this company, but that they contemplated a
latge canal, which should hear the impress of a great national
Work-—because the commissioners appointed to fix upon its lo»
cation, had been employed on the Chesapeake and Delaware
Canal. rhe same commissioners had been employed on the
J t ic canal, and by a course of reasoning equally logical, it
nr.gh* he inferred that triey contemplated a small canal of that
size. If the legislalure for that reason meant a great national
canal, why did they not give the commissioners power to regu¬
late, its dimensions? Why did ihey not give the company a
capital commensurate with the work? It is said great com¬
plaints are made of the size of the Erie canal. We have never
heard such complaints in any official communications made by
officers or agents acting in reference to that canal, and believe
that it w ill answer all the purposes of commerce for 50 years
to come. It is belter-to begin on a moderate scale. Ii the work
should hereafier he found too small, it can easily be enlarged ;
but if when half way through, it should he found too large
and expensive, it would paralyze the undertaking, and involve
those concerned in ruin. Great national works must be made
by the nation, out of the national funds, for great national
purposes, without a view to.pecuniary profit. It is madness to
engage a private company in such an undertaking.
Many of the conditions in this Pennsylvania law, are suck
as it is impossible for the company to perform, and of course,
to accept. This charter, under this law, will be void, if New-
Jersey should refuse a similar grant of the waters of the De-
la ware, for a similar canal. Is a New-Jersey legislature pre¬
pared to guaranty that they will give such a grant at the beck
of Pennsylvania? If not, the company must take the charter,
construct the canal, and when completed, if New-Jersey and
Pennsylvania should hereafter disagree about a canal required
by Pennsylvania, the charter is at an end. Constructed un¬
der & Pennsylvania law, which, if adopted by New-Jersey,
áO
t*P course will constitute a part of the compact j the UnileäflL
States'judiciary would enforce the laws, and disfranchise the
company.
Of the same class is the condition, that if the navigation of
the Delaware should be seriously injured, the charter is void»
As before shovfii, V w-Jersey has a right to the use of these
waters, unless a serious injury should be done to the right of
navigation on the part of Pennsy lvania : of course this graut
gives us nothing hut what we had before. It is a mere mock,
ery to call it a grant. It is worse than mockery, for it adds to
it insult and injury—inasmuch as it is made the pretence for feK
tering the canal, through its whole course, with Pennsylvania
legislation and restriction. We are told, however, that phy.
sical science will demonstrate, that the navigation of the Delà-
ware will not be seriously injured—tnat it will not be dimin¬
ished a half inch. An allusion is here made to the theoretical
figuring appended to the memorial of the committee at Harris-
burgh. Others, however, equally enlightened in science, have
given it as their opinion, that this large national canal may di¬
minish the waters of the Delaware more than two inches. Ex¬
perience is the mother of wisdom, and often puts at naught the
boasted theories of man. The Pennsylvania Legislature had
lio confidence in the theory, or why insert the condition ? Will
the Legislature of New-Jersey guaranty, in the midst of thi$
sunshine of science, that if the navigation oí the Delaware
should be seriously injured by this great national canal, they
Will indemnify the Company for the loss of their charter ? If
not, will they seriously call upon a private company to go oü,
at the risk of such dessolation and ruin?
The next condition of this Pennsylvania supplement to the
charter to be considered, is that requiring the Company to con¬
struct a canal through Pennsbury manor on the Pensylvania
side. This cannot be done. This Company cannot expend
their capital for any purposes except those directed by the char¬
ter. The Company merely requested of Pennsylvania to grant
a charter for such a canal. Instead of this, they impose this
impossible burden upon this Company if they should hereafter
require it.
it is optional with Pennsy lvania to make this grant or not.
Xf she choose to defeat the canal, she has only to withhold the
grant; and the stockholders, acting under the provident care
of a New-Jersey Legislature, would be left with a canal eight,
feet deep, opening into the Delaware above the shoals, and
Without any power to improve its navigation. But We are told
that the career of public improvement is expansive, and Penn¬
sylvania will certainly grant the Pennsbury manor canal. J£
So, why did she not do it at once ? How long since has it bee&
discovered that the views of Pennsylvania on this subjeet aro
so expansive ? Why all the difficulties in getting her assent
at all ? Why were all her jealousies awake? Is not her great
emporium jealous of a rival city on the other side of our state,
and apprehensive that a free communication by sloop naviga¬
tion will redound more extensively to the interest of that rival ?
Is she not anxious to bring the west, by a canal much shorter
than the route through the lakes and Erie canal, to her own
emporium, and there to stay its march ? Is she not also anx¬
ious that the commodities on the borders of the Delaware should
float exclusively to her own emporium? Every man who lias
been awake to passing events, must answer these questions in
the affirmative. We must not suffer our avarice to blind our
Understandings.
The Company are required to keep the middle grounds of
the Raritan cleared out eight feet deep, and of course to exca¬
vate to the depth of six feet, or else to construct a canal there
—the election is impossible. They cannot, under the charter^
Construct a canal below Martin's dock : at which point the
commissioners have terminated it ; and they would be trespas¬
sers if they entered on any lands below that point. Judging i
from the attempts to clear out the Hudson near Albany, which j
is constantly filling up, it would be a never-ending expense to
clear out the middle ground.
Ry the 19th section of the charter it is provided that this ca¬
nal shall be a public highway forever. The canal is to he sup¬
plied with water from the Delaware under the assent of Penn-;:
aylvania, and of course the supply of water and the consent of!
Penn. for that purpose should be co-extensive in duration with
the canal, and perpetual. The consent of Pennsylvania is not*
of that character, hut is liable to be defeated at any time b\ ?he[
happening of one or all of these conditions. The conclusion isf
irresistible:—this consent of Pennsylvania required to be ob-j
tained by the first of June 1826, does not answer the require-
jjnents of the charter, and of course the charter is at an end.
A very important inquiry still remains to be considered ».
Will it comport with the interest and dignity of the state of N.S
Jersey to take this bonus, and thereby adopt this Penn. law,
and the principles involved in it? The legislature of Pennsylva-j
ilia, proceeding upon the novel idea that they had not merely aj
right of use for the purposes of navigation, but a common pro¬
perty in the waters of the Delaware on our soil, and were co-
tenants, have carried out that doctrine to an alarming extent,
and made it the pretext of legislating along the whole line of
this canal, Hence they provide tnat it snail be a public high-'
i S
way forever, for all passengers and all commodities, tedíate
its dimensions, its location, tin* size of ils locks an » in «er: va¬
rions otner provisions of a similar character. Some of those
are, to he sure mete tr&uscrip s from our charter—but why
were they inserted in the law ? Were they ignorant of those
provisions in our charier ?—th?it is impossible. They me.nt,
•under the pretext that they had a common property as co-ten¬
ants in »hese waters, though flowing through New Jersey soil,
to streich their legislation into the very heart of New-Jersey.
They make this canal the subject of concurrent legislation, at
the same time that they were protesting against New-York for
creating her Schuylkill Coal Company. If N. Jersey should,
at the end of fifty years take this canal, site takes it subordí¬
nate to the legislation of a mere equal sovereignty It is said
that New-Jersey will not tie bound to take it. True;—hut
will New-Jersey sanction a state of things which, when it will
be her interest, will render it repugnant to her dignity to take
fcer own canal on lier ou'n soil P
We will not stftp to notice all the provisions of this Pennsyl.
Vania law, in reference to this subject. We will only advert
to one other provision. It is provided in the Philadelphia ch. r-
ter that the canal shall never tip used for any purpose but that
of navigation : of course it is never to be used for any manufac¬
turing purposes. Observe the art here used—the Company
are prohibited expressly from engaging in any manufacturing
concern. They do not venture expressly to prohibit the state.
It would be too barefaced. They arrive at it indirectly, by pro¬
viding that the waters shall never be used for any purpose ex-
cept that of navigation. At the time they insisted on this pro¬
hibition they were aware that their ow n Schuylkill canal was
lined with manufactories. This canal would have an elevation of
48 feet, and the whole line of the canal and feeder might be alive
with manufacturing establishments. Sloops floating through
this large national canal, without any transshipment or places
of deposit, w ould enrich New-Jersey about as much as they do
in passing coastwise. Her great benefit would be derived from
the establishment of maouiVctories ; yet t'ese immense advan¬
tages are to be sacrificed for the sake of grasping at this bonus.
"Pennsylvania ptohibiting New-Jersey from setting up man¬
ufactories on the. line of this canal and feeder, under the pre¬
tence that she is a co-tenant of the water» flowing through the
canal, and therefore has a light to restrain tiie Use of them,
does not herself hesitate to draw off the waters of the Delaware
in sluices, for the establishment of manufactories, wherever she
thinks proper. Witness their proceedings at Morrisville, op¬
posite to Prallsville, aud other places. True, she may not ia-
IS
jute the navigation, and therefore lias a right to act thus under
ourdocirine ; but what becomes of the principle of ro tenancy
and that the soverrign'y of the adjacant state is attacked by
drawing oft these waters, even without any consequent injury.
It is said New Jersey ought not to complain when Pennsyl¬
vania only abridges our charter. Foreign legislation is jrtst as
injurious an oppressive in its tendency when it cripples, as
when ii enlarges the powers of our corporate institutions.
It h >s been said that although the Company should be en¬
titled to a return of the bonus, yet ten thousand dollars ought
to be paid to the state under some private under-hand agree,
ment, not appearing i tue charter nor in any resolution of the
Legislature; but made between some individual, active and
anxioU9 to get the law, and some members of the Legislature.
There are two answers to such a claim. 1st. Such a back-stair
agreem -nt, if made, was unconstitutional, No money can con¬
stitutionally come into the treasury without the authority of the
G -neral Assembly, w ho, as the immediate representatives of
the people, for that purpose, hold the purse-strings of the state.
2d. Such an agreement, if valid, could only operate on that in¬
dividual, and not upon the corporation, which is formed under
the charter, and which looks to the charter alone as containing
the compact"
What will be the consequence of such Legislative proceed¬
ings? Who will venture to take stock under a charter, vviiea
the charter itself cannot be relied on : when private arrange¬
ments of this kind, made before the charter had a being, are to
be set up ro defeat the rights of the stockholders, as derived un,
der (he charter?
But a new era is sought to be opened up in the science o|
legiAation. The Legislature must be paid for their ser ices
and expenses in originally granting he charter. The Com¬
pany are in no default—the necessity of truckling to the stat®
of Pennsylvania, for her assent was not sought by them, but
was imposed upon them in the charter. The committee ap¬
pointed to examine the subject, say they have been sincere, and
used the most strenuous exertions to procure such an assent
from Pennsylvania, as would fairly answer tiie purpose. They
have been subjected to an expense of upwards of $*¿0,000.
They tender to the state all the benefit of the surveys and other
information 011 the subje t, which they have procured. When
the charter fails without any default on their part, it is said
they siiould be subjeited to the novel expense of paying the
state of New-Jersey for her legislative services, in granting luía
charter. " Publish it nut in the streets of Ascalon,'*
it
Tf the company are entitled to the principal of this bonus, they are en»
"titled to the interest. The interest must follow the principal.
We are as firmly of the opinion that a canal on a moderate scale, ought
to be constructed, as the author of the address—but we do hot entertain
the same apprehensions of sectional jealousies and local prejudices. We
believe there is enough of liberality in a New Jersey legislature, to act
for <he state, and the whole state. Is it tight and politic, to retain from
Ihe stockholders, their money which they are honestly entitled to, under
a feverish apprehension that a canal may not be constructed ? Sound pol¬
icy is not at variance with common honesty, Petty bargaining and traf¬
ficking in legislation, should be discarded, especially when the private
rights and feelings of individuals are concerned.
This claim of the company to this bonus, depends upon a few of the
plainest af all propositions. The company Under this compact, have done
their du;y. They are in no default, but nave used every exertion, and
been at great expense to get the assent of Pennsylvania for the use of the.
waters of the Delaware, on fair principles. This assent, which was re¬
quired to be given by the first of June 1826,was granted, so clogged and
incumbered, as to be burdensome upon the company and the state of
New-Jetsey—repugnant to its dignity, in derogation of its sovereignty,,
and does not answer the requirements of the charter. 1 he company, ea¬
ger to execute this grea. work, and to impress for laudable purposes, a
conviction of their eagerness on tne minds of a Pennsylvania legislature,
paid this money into the hands of the state treasurer, before it was due.
Tue charter, for want of this requisite consent, being at an end, without
the default of the company, the consideration for that payment has failed,
and, ex equo et bono, it ought to be refunded. In a case so plain, avarice
itself would pause before it seized.
Yet the claim on the part ofihe state has its "excuses, and what case se
bald as to be without some pretensions." he history of the world, which
is in a great measure a history of the crimes and follies of individuals aud
of states, presents but few crimes and follies whicn were notât the mo¬
ntent of their perpetration covered with excuses. Even a Sylla exulting
over the dead bodies of thousands of his countrymen, had his excuse%
which at the time satisfied his conscience.
New-Jersey has always been distinguished for her plain straight forward
integrity, Her legislature, alive to her true honor and her lasting interests^
will refrain from the commission of an act which would inevitably cast *
•tain upon her character.
Gay lord Bros.
Makers
Syracuse, N. Y.
PAT, JAN. 21; 1908
i i lililí! Ill Iii!
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