never could speak of him without gratitude for the favors and obligations he had heaped upon him: he never could think of his unhappy malady without the acutest sensibility. Neither the reports of the physicians, nor threats in or out of doors, should operate to prevent his exercising his own judgment in whatever regarded his royal master's interests. He would rather perish ignominiously on the scaffold than desert his allegiance to his sovereign, by declining to take any steps which his duty and his office pointed out to him. He would act in every possible case upon his official responsibility, and be content to leave the consequences to God. Charges or menaces were alike indifferent to him. Let the shock come, he was ready boldly to encounter it —'impavidum ferient.' For myself," were the chancellor's closing words, "let me but see my sovereign well, and then let me depart in peace." After this feeling address, lord King moved to omit the name of John lord Eldon from the important trust of the Queen's council. The division gave a large majority in lord Eldon's favor-content, fifty-four; not content, one hundred thirty-nine. A protest, recapitulating the charges in firm but temperate language, was signed by lords Grey, Holland, Erskine, and six other peers.

Lord Eldon had imbibed from his youth, and in the orthodox bowers which Isis waters, the dogmas of the tory creed in all their purity and rigor. By these dogmas he abided through his whole life with a steadfastness, and even at a sacrifice of power which sets at defiance all attempts to question their perfect sincerity. Such as he was when he left Oxford, such he continued sixty years afterwards, to the close of his long and prosperous life; the enemy of all reform, the champion of the throne and the altar, and confounding every abuse that surrounded the one or grew up within the precincts of the other, with the institutions themselves; alike the determined enemy of all who would either invade the institution or root up the abuse.

In our next number, when considering lord Eldon as a legislator and a statesman, we shall view the lights and shadows of his character without prejudice or passion, and close our imperfect notice of this great and good man, with the particulars of those social and domestic virtues which never shone so brightly as in the reflection of his own fireside.

ART. IV.-ON THE VALIDITY OF MORTGAGES OF RAILROADS TO THE STATE OR INDIVIDUALS BY RAILROAD COMPANIES.

as

FRANCHISES, which are defined by Finch' to be royal privileges in the hands of a subject, are of several kinds. C. J.' said that liberties or franchises were of three kinds: "1. Those that are ancient flowers of the crown, felons, goods, etc., which, if they are forfeit, judgment may be of ouster or seizure, for the king may have them again.

"2. A thing newly created, which the king cannot have as a corporation, which, if it commits a forfeiture and a judgment of ouster be given, in such case there needs no seizure; for to what purpose shall there be a seizure by the king, when he may not have it?

"3. There are things newly created, as markets, etc., which may subsist after seizure by the king; and, in such case, though judgment of ouster be given, there shall be a judgment of seizure for the king."

It is important to distinguish between the different kinds, for certain franchises appear to have been mere gratuities; and to such the following discussion does not relate. Whenever a grant of a franchise confers a right connected

1 Finch, 38.

2 King v. City of London, 1 Skin. R. 310.

with duties to be performed, it imports a contract between the king, or the government, and the grantee of the franchise, and is subject to every incident, after acceptance, which attends a contract for a valuable consideration. It is one of the incidents of contracts and obligations, that they cannot be severed or apportioned.' A contract cannot be severed or apportioned, because a severance or apportionment is such a change in the terms of a contract as would completely change its character. If new parties are interposed, it is no longer the same. If a part of the subject-matter of a contract is withdrawn from its operation, the original agreement no longer exists. Whatever effect may be given to the qualified obligation, it takes effect by substitutions and by virtue of a new agreement, which, whilst it annuls the existing contract, establishes, on a sufficient consideration, a new one in its place.

For the same reason, a condition cannot be apportioned. When the condition is extinguished or dispensed with in part, it is entirely gone;' because, if a condition was sustained in part after being in part discharged, a new contract would be created, requiring for its support a new and sufficient consideration. Such a change cannot be effected by the action of one party.

A discharge of a part of the consideration of a contract will operate to conclude the party for whose benefit it was provided; but a reservation of a part of the condition will be ineffectual.

A franchise is a contract which binds the government to sustain the right, and the subject to execute the duties which it imposes. A condition of the contract is performance of those duties. When any act of the parties prevents the possibility of fulfilling the contract involved in

1 See 3 Vin. Abr. p. 6. Apportionment, A. pt. 10, 11.

2 Dumpor's case, 4 Co. 119.

the grant of a franchise, though it is capable of being performed in part, it is no longer the same agreement.

When any act of the party, for whose benefit the contract involved in the grant of a franchise is to be performed, prevents its execution, the condition is discharged, and the contract is dissolved; and when it is prevented in part, the obligation to perform the contract ceases; for, if the consideration or the contract is less extensive than by its original terms, a new contract is created, and this result cannot follow from the act of one of the parties.

When a franchise is granted to an individual, which vests in him certain rights, and, as the consideration of their exercise, subjects him to the performance of duties, the parties to the contract by which the franchise is created may waive or modify it at their pleasure; but they cannot so change the terms of the contract as to sustain the original grant, whilst the modified agreement prevents its exercise. If the act of the government amounts to a discharge of the condition, or a waiver of performance, the franchise is nevertheless vested, and may be sustained, independently of its conditions. If there is any incompatibility between the franchises and any ingrafted or substituted agreement, which yet recognises the franchise as existing and entire, all that is inconsistent with the original contract must be rejected.

In many instances, franchises have been created, to be exercised over the territories of individuals, giving, in virtue of the eminent domain, a right to the grantee to enter upon the land of others, and to appropriate it to the purposes of the franchise; and, after possession had thus been obtained, the very interest acquired in the land, -the material part of the franchise, has been conveyed to the government by whose grant the right was created, whilst the obligation to exercise the franchise yet continued an existing duty.

Loans of money have been made by states to railroad companies, and the road itself has, in many cases, been mortgaged for its security. The terms of the mortgage give an absolute right to the road on failure of payment, leaving the abstract franchise to the company, with all its duties and obligations.

Thus the government, to which there is an implied engagement, on the part of the grantee of the franchise, to enter upon the land appropriated to its objects, and to construct and sustain a road, withdraws from its grantee the very land over which the right was to be exercised, whilst an existing contract requires that the company should use and enjoy the land for the purposes of the franchise. Here, then, is a manifest incompatibility between the rights reserved by the original contract and the estate which the mortgage purports to convey; and it is quite impossible to sustain the one, whilst the other is carried into effect.

When a grant is made to a company of a franchise, which is to authorize them to enter upon the land of individuals, and to set it apart forever for a way, to exclude all others from the use of that way, and to take toll from passengers who are admitted to its enjoyment, a high prerogative of sovereignty is exercised, which can only be justified on grounds of necessity, and from considerations of public good. The government can take the property of individuals, and appropriate it for the benefit of the public, on the provision of adequate indemnity; but the property thus taken can only be used for public purposes; and when the franchise which is granted to individuals renders it necessary that private property should be taken, that property can only be used for the single purpose for which the franchise was created. As against the citizen, the right is exercised in invitum ; and no higher or greater interest is vested by the franchise,