3. That the vessel was subject to condemnation for sailing after said notification under a charter party for a voyage from Boston to Liverpool, by way of Beaufort, with a falsified clearance representing a fictitious destination from Boston to Turk's island.

4. That the vessel was confiscable because of the conduct of the master in knowingly making false statements as to the ownership of the cargo, in his preparatory examination.

5. That the entire cargo of the Herald was the property of enemies of the United States and, as such, subject to condemnation.

The brig Herald, a Nova Scotia built and originally a wholly Nova Scotia owned vessel, arrived at Boston on or about May 20, 1861. A state of war existed on that day between the United States and the insurgent people of certain states, one of which was North Carolina. She carried a British register and a British flag. A portion () of her was owned, however, by Mr. David R. DeWolf, a merchant of New York. This interest, acquired in 1854, was never registered, nor was it evidenced by any proprietary document.

Messrs. St. George T. Campbell, Beebe, Donohue and William Dean for appellants.

Mr. Chief Justice Chase delivered the opinion of the court:

The libel claimed the forfeiture of the brig and cargo as prize of war. The master prayed restoration of the vessel in behalf of six alleged owners, all British subjects, of whom five were domiciled in Nova Scotia, and one in New York. He also prayed restitution of a part of the cargo, which consisted wholly of turpentine, tar, rosin, and tobacco products of North Carolina and Virginia, in behalf of the owners living in North Carolina; and of another part in behalf of persons believed to have an interest, residing in New York, South Carolina, and in England. Restitution of the rest of the cargo was claimed by William Williams, a merchant, and a native and resident of New York.

No proof of ownership of cargo was made, except in behalf of Williams and the parties living in North Carolina.

The principal question in this case is, Was the brig lawful prize? She was a neutral vessel, and the answer to the question must depend on her employment at the time of capture.

Her master, under charter to Williams, had taken a clearance at Boston on the 22d May, 1861, for Turk's island, while her real destination, concealed from the officers of the customs and from the crew, was Beaufort, in North Carolina. The excuse given by the master for false clearance and the concealment, was his apprehension that his crew would not consent to a voyage to Beaufort, and his asserted intention to proceed to Turk's island, in case he should find Beaufort blockaded. Under these circumstances he sailed for Beaufort and, after

He remained at Beaufort taking in cargo, about a month, and then sailed for Liverpool. The actual establishment of the effective blockade of the *ports of North Carolina, [*773 in pursuance of the President's Proclamation of the 27th of April, 1861, was notified by Commodore Prendergast on the 30th of April, and it is a matter of history that the notification, as well as the proclamation, became at once well known throughout the country. It is impossible to believe that the master of the Herald, at Boston, on the 22d of May, could have been ignorant of facts so notorious. His conduct on arrival near Beaufort strongly indicates his apprehension of capture. The lights at the entrance of the harbor had been destroyed by the insurgents, and yet, though arriving on the morning of the 9th, he lay off and on some twenty miles south, all that day, and went in during the succeeding night.

We know of no case of prize in which a captured vessel has been restored under such circumstances; but we need not rest the decision of this case upon this evidence of attempt to enter a blockaded port.

The vessel, when once within the harbor, proceeded to take in a cargo. Some difficulties were encountered from the action of the rebel military authorities and from the disturbed condition of the country, but the lading was at length completed and the vessel sailed, as already stated.

During the month which elapsed from arrival till departure, the effectiveness and stringency of the blockade were materially increased. The master, it is true, asserts that he still remained ignorant of its existence; but the evidence shows that it was the common topic of conversation in Beaufort and Morehead City, and he says himself that while he was taking in cargo he saw from the tops of the buildings, with a glass, a man-of-war off the harbor, one about three weeks, and the other about one week, before sailing. Another witness, a hand on the brig, says, during the time the vessel was lying at Beaufort he saw three different men-of-war off the harbor; and during the last two weeks he saw a man-of-war as often as once in three days. A letter from one of the shippers of the cargo, found on the brig, informs his correspondent that "a smoke had been seen off in the *offing at one time, and it was thought [*774 to be one of the blockading squadron."

It would be difficult to make more conclusive proof of the existence of the blockade, or of notice of the fact to the master of the captured vessel.

The cargo was shipped to be conveyed from the port by this brig, and was in the same offense.

The facts of the case supply other grounds of condemnation. The shares of the vessel owned in New York, and the portions of the cargo belonging to Williams, of New York, might be condemned for trading with the enemy, and other portions of the cargo might be condemned as enemy's property, but it is enough that vessel and cargo were equally involved in the &t

On appeal from the general term of the supreme court to the court of appeals, upon the first argument, in 1862, upon bringing the case to a decision, the court was equally divided. Judge Denio stated that it was the most important case that had come before the court that year.

The House agreed with the committee in its report.

In 1854 petitions for a new bridge over the Chenango river at Binghamton were presented to the legislature, and the committee on roads and bridges reported a bill which was referred to the committee on the judiciary, and the same referred, by the House, to the Attorney General. The Attorney General (the Hon. Og den Hoffman) reported that the plaintiff's rights would be interfered with, and that the proposed bill would be in violation both of the Constitution of the state of New York and of the United States.

The committee recommended the "rejection of the bill, on the ground that it was unconstitutional." Ass. Jour., 1845, p. 856. The proposed bill did not pass. In 1855 an act passed the legislature incorporating the defendant in error, and authorizing the erection by it of a bridge over the Chenango river in the village of Binghamton not less than eighty rods above the plaintiff's bridge, and south of the New York & Erie Railroad Bridge. The defendant had constructed its bridge under said act, and that against the repeated protests of the plaintiff. The defendant in error claims that the said act gives it full power to construct said bridge and collect tolls.

The Chenango Bridge Company hereupon brought its action against the Binghamton Bridge Company, for the purpose of perpetually restraining the Binghamton Bridge Company from violating the plaintiff's franchise by the erection and use of its new bridge on the Chenango river, and for an accounting in damages for the loss of tolls sustained by the plaintiff, thereby.

The case was first tried at a special term of the supreme court, and that court determined the case against the plaintiff, on the sole ground that there was no prohibition contained in the legislative enactments which constitute the plaintiff's charter against the erection of other bridges over the same stream and in the vicinity of its bridge.

But that court at special term and on appeal at the general term, was of the opinion that if the restriction contained in the charter of the Delaware Bridge Company had been incorporated into the plaintiffs' charter, it would have constituted a contract between the state and the corporators, which would have been within the protection of the provisions of the Constitution of the United States which forbids the passage of any law by a state impairing the obligation of contracts; and the learned

26 How. Pr. 125.

Upon the reargument in 1863, five new judges taking the place of five of the judges of the previous year, the judgment was affirmed by a decision of five to three judges.

The court of appeals, being the highest court of all in the state of New York in which the decision could be had, certified "that the questions raised by the appellants (plaintiff in error), was that the act of the legislature of the state of New York, entitled 'An Act to Incorporate the Binghamton Bridge Company,' passed April 5, 1855, was void, as being in violation of a contract made between the state of New York and the said Chenango Bridge Company by certain acts of the legislature of said state, which are fully stated and set forth in the case and bill of exceptions forming a part of the record herein; inasmuch as said act of April 5, 1855, authorized the erection of another toll bridge across the Chenango river within two miles of the appellant's bridge; and the question raised by the appellant (plaintiff in error) was whether the said act of April 5, 1855, was repugnant to the Constitution of the United States; and the decision, in order to induce the judgment of this court, was, that the said act of April 5, 1855, was not repugnant to the Constitution of the United States, and that said act of April 5, 1855, is held valid and binding by this court, notwithstanding said act was drawn in question in this cause, and the question clearly raised therein, that said act was void as aforesaid."

In the court of appeals, after the final argument, only three of the judges delivered written opinions.

The prevailing and only written opinion for affirmance was by Judge Wright, who held:

That the prohibition against constructing other bridges within a distance of two miles, is not a part of the charter of the plaintiff; and,

That the provisions against constructing bridges within a few miles was intended as a mere restriction upon individuals, public officers and authorities and other corporations, and was not intended to be or to constitute any restriction upon the sovereignty of the state, and does not involve any surrender of the rights on the part of the legislature to grant in its discretion such other charters within the limits prescribed as may be required by the public interest; consequently that the grant subsequently made by the legislature to the defendant, to erect its bridge, does not come within the prohibition of the Constitution of the United States, which declares that "no state shall pass any law impairing the obligation of contracts." Written opinions for a reversal were read by Denio, Chief Judge, and by Judge Emott.

Their conclusions were that the state, through the law-making power, contracted with the

of the contract between the public and the plaintiff. The plaintiff, therefore, contends that, by the acts under which its bridge has been erected, the defendant was prohibited from building its bridge.

2 How. Pr. 297.

Davies and Rosekrans, J. J., concurred on both the grounds stated in the opinion of Judge Wright; and Selden and Marvin, J. J., were for affirmance on the ground that one legislature cannot restrain the power of future legislatures.

26 How. Pr. 152.

The court of appeals was, therefore, of the opinion that the restriction against other bridges for two miles was applicable to the plaintiff's bridge, but that the legislature was not restrained by the Constitution of the United States from granting other charters within the prescribed limits.

Mr. Henry R. Mygatt, for plaintiff in

error:

The complaint was dismissed and judgment rendered for the defendant, and the highest court of that state held the act of 1855, which was the only authority on which the defendant based its rights to build any structure over the Chenango river, to be valid.

As said by this court in a recent case, "in holding that act to be valid, notwithstanding plaintiff's claim that it was void as impairing the obligation of its contract with the state of (New York) a decision was made within the very terms of the 25th section of the act of 1789."

1st. The preamble to this act states the motives and inducements to the making of it. "Charters are to be expounded as the law was understood when the charter was granted." 2 Inst. 282.

The general rules of construction applicable to the grants of states, do not differ from those applicable to other contracts. Such grants have a liberal and favorable construction for the sustaining of them.

Pars. Cont. vol. II. p. 10; note k; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 221.

Lord Coke and Lord Bacon both say, "The preamble is a key to open the understanding of the statute;" but in this case the motives and inducements for granting the use of the waters for two miles each way, are clearly and expressly engraven on the body of the act; whereas, says Lord Coke, "the words are plain without any scruple, and absolute without any saving." 2 Inst. 533.

"The preamble is properly referred to, when doubts or ambiguities arise upon the words of the enacting part. The preamble can never enlarge, and it cannot confer any powers, per se. Its true office is to expound power conferred, not substantially to create them." See to same effect, Crespigny v. Wittenoom, 4 T. R. 793; Edwards v. Pope, 3 Scam. 465.

2d. But the plaintiff's bridge was not built until the amended act of 1808 induced the capitalist to this work.

It cannot be doubted that the enactment of 1808 was intended by the legislature as an inducement to capitalists to embark in the enter

Second. The plaintiff's grant by the act of 1805, as amended in 1808, was an exclusive right to maintain a bridge over the Chenango river and receive tolls, which grant excluded all competition within two miles thereof.

This act of 1808 divided, as it were, the corporation into two. Its original capital was $20,000, and it was authorized to erect and maintain two bridges, one over each of the rivers specified. It was, by the act of 1808, restricted under its original name and corporation, to the building and maintaining one of the bridges which were included within the original design, that over the Susquehanna river; and its capital was reduced to $10,000, one half of the original amount; at the same time its stockholders, with any others who might associate with them, were created a body corporate under the name of the Chenango Bridge Company, with the power and right, exclusive of the present organization, to build and maintain the Chenango bridge. The remaining $10,000, or one half of the capital originally authorized, was set apart and designated as the capital of the new corporation.

From this simple recital of the sections applicable to the plaintiff's franchise, it is evident that the proviso prohibiting the erection of any bridge within two miles of the bridges on the Delaware, is a part of the plaintiff's charter,

spired by the pledge of protection against competition, and that it was so understood and accepted by those who engaged in the undertaking.

The great object to be attained was the bridge, and citizens were induced to subscribe for the stock and build the bridge, under the sanction of a solemn act of the state, granting privileges which, from the usage of every civilized government where the rights of property are acknowledged, they had a right to believe were guaranteed to them by that act, and that they would be protected in that enjoyment by the authority under which they held.

"Such grants are not regarded as monopolies in the odious sense of the phrase, but as contracts within the meaning of the Constitution." Sedg. Stat. and Const. L. 625.

Kent says (1 Com. 8th ed. 511): "The current of authority of the present day is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtile and forced constructions." Kent further says: "If the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law and the objects and remedy in view."

3d. The contemporaneous exposition is that the section in question of the Delaware Bridge Co. applies to the plaintiff's charter.

The history, situation, and past legislation of