wer unknown to the
framers of the Constitution." I cannot doubt that Marshall would have
flouted this theory had he lived to pass upon it, but Marshall died in
1835, and the Charles River Bridge Case, in which this question was
first presented to the Supreme Court of the United States, did not come
up until 1837. Then Joseph Story, who remained as the representative of
Marshall's philosophy upon the bench, vehemently protested against the
latitudinarianism of Chief Justice Taney and his associates, but without
producing the slightest effect.

In 1785 the Massachusetts legislature chartered the Charles River Bridge
Company to build a bridge between Boston and Charlestown, authorizing
it, by way of consideration, to collect tolls for forty years. In 1792
the franchise was extended to seventy years, when the bridge was to
revert to the Commonwealth. In 1828 the legislature chartered the Warren
Bridge Company, expressly to build a bridge parallel to and practically
adjoining the Charles River Bridge, the Warren Bridge to become a free
bridge after six years. The purpose, of course, was to accelerate
movement by ruining the Charles River Bridge Company. The Charles River
Bridge Company sought to restrain the building of the Warren Bridge as a
breach of contract by the State, but failed to obtain relief in the
state courts, and before the cause could be argued at Washington the
Warren Bridge had become free and had destroyed the value of the Charles
River Bridge, though its franchise had still twenty years to run. As
Story pointed out, no one denied that the charter of the Charles River
Bridge Company was a contract, and, as he insisted, it is only common
sense as well as common justice and elementary law, that contracts of
this character should be reasonably interpreted so far as quiet
enjoyment of the consideration granted is concerned; but all this
availed nothing. The gist of the opposing argument is contained in a
single sentence in the opinion of the Chief Justice who spoke for the
majority of the court: "The millions of property which have been
invested in railroads and canals, upon lines of travel which had been
before occupied by turnpike corporations, will be put in jeopardy" if
this doctrine is to prevail.[21]

The effect of the adoption by the Supreme Court of the United States of
the New York theory of the Police Power was to vest in the judiciary, by
the use of this catch-word, an almost unparalleled prerogativ