growing out of the College case still unsolved. How it will be determined, we can best inquire, perhaps, by a somewhat detailed history of the constitutional provision, and of the College case itself.

When the convention was sitting in Philadelphia congress was sitting in New York, and there was a reciprocity of influence between the two bodies. Nathan Dane procured congress to pass his great Free Soil ordinance, declaring that in the just preservation of rights and property, no law ought ever to be made or have force in the Northwest Territory that should, in any manner whatever, interfere with, or affect, private contracts or engagements previously formed. A month later Rufus King, in the constitutional convention, caused a like limitation on the legislative power of the states to be incorporated into the proposed constitution; and upon that limitation the College case was founded. Nothing in the discussions, or in cotemporary history, indicates any prevision of the extent to which the court might carry the limitation. Indeed, historically considered, this clause, although aimed at legislative action, was intended to prevent the passage of bankruptcy laws by states, which would favor their own citizens at the expense of citizens of other states. Judge Bradley says (Sinking Fund cases, 99 U. S. 745, 1878) that the contract clause, being imposed upon the states only and not upon congress, undoubtedly had its origin in the above consideration.

The Federal constitution was adopted by a narrow majority. Only the great name of Washington carried it through. There is nothing which indicates that the protection of corporate rights was had in view in the contract clause. Judge Swayne said (Edwards v. Kearzey, 96 U. S. 595, 1877) that the point decided in the College case had not occurred to any one when the constitution was adopted by the people. There is no trace, said he, in the Federalist, or in any cotemporaneous publication, of this point. Judge Marshall, said he, admitted the novelty

of the point. Marshall said (College case, 4 Wheaton 644) it is more than possible that preservation of rights of this description was not particularly in the view of the framers of the constitution, when the clause under consideration was introduced into the instrument. Both the states and the United States existed before the constitution. The scheme of having the new government operate directly upon the people through the Federal courts, was the distinctively new feature. This feature stamped the new government as a success. At the same time it was calculated to excite jealousies and resentments in the states. Nothing but the caution, moderation, fairness, patriotism, and high character of the Federal bench has prevented serious outbursts.

In the case of Davidson v. New Orleans (96 U. S. 104, 1877) Judge Miller says that no proposition at once perspicuous, comprehensive, and satisfactory can be given as to the relation of the Federal power of setting aside laws impairing the obligations of contracts, and the state governments, and that this can only be ascertained by the gradual process of judicial inclusion and exclusion as cases arise. This is true. Of course it is not possible to review that gradual process within the limits of this address. We can only consider a few cases, and we will first look at two cases prior to the New Hampshire case-the New Jersey Tax case and the Georgia Land case. These cases had already brought express contracts of states within the constitutional inhibition. An act passed by the colony of New Jersey, in 1758, in consideration of release of title by Indians, declared that lands purchased for them should not be taxed. This, it was held, constituted a contract which could not be impaired by a subsequent repealing act. From this case, and not from the College case, is the fully established, but astonishing, doctrine derived that a legislature may partially abdicate its power of taxing, the main power of government, and make an irrevocable contract

with a corporation for exemption from taxation. Judge Miller declared, in 1877, that he never could believe that one legislature has power to bargain away the right of a succeeding legislature to levy taxes in as full a manner as the constitution of the state will permit. (New Jersey v. Yard, 95 U. S. 114.) The result of the New Jersey Tax case was never availed of, and the state collected taxes for more than sixty years upon the very lands in question; so that in 1886 it was held (Given v. Wright, 117 U. S. 648) that a surrender of the right of exemption would be presumed. The New Jersey Tax case was submitted without argument, and was in effect a moot case. Such is the dubious origin of a doctrine which must probably sometime be abandoned. Judge Bradley said in 117 U. S., above, that the decision might be questioned were the point a new one; and Judge Miller said (University v. Rouse, 8 Wall. 444) that it must ultimately be retreated from. The exist ing doctrine is (Vicksburg R. R. v. Dennis, 116 U. S. 665–8, 1885; W. & W. R. R. v. Alsbrook, 146 U. S. 279, 1892) that there must be a full and explicit legislative expression to impair the taxing power of the state.

Shortly before the Tax case, and ten years before the College case, the Georgia Land case came up from the Circuit Court of Massachusetts (6 Cranch 87, 1809). It arose out of the so-called Yazoo land fraud, and was an action by Fletcher for breach of a covenant in a deed made by Peck that the legislature of Georgia had authority to sell to Peck's grantor. A later legislature had annulled a previous act (authorizing the government to sell) upon the ground that it had been obtained by bribery (which seems to be a natural disease of free institutions. See N. H. in Governor Sawyer's time.) Judge Johnson in his concurring opinion said, that the case on its face bore strong evidence of collusion; but he abandoned his scruples, on account of the respectability of counsel,-J. Q. Adams, Story, and Luther Martin. That extraordinary man, Judge

J. S. Black, used to say that he was told by Judge Catron that the case was made up at Boston by two men who lived in Tennessee, both having the same interest in the fraudulent grant, and both of whom told him that the case was a sham, and the judgment collusive. Four of the five judges held that the grant was an executed contract by the grantor not to reassert the title granted. The fifth judge declared that his opinion was not founded on the contract clause of the constitutiou, but on the principle that a grant by a state is, in its very nature, irrevocable, a principle subsequently stated by Story in Terret v. Taylor (9 Cranch, 435, 1813). Plainly, if the decision was based on that ground there was no Federal question, and the case should have been dismissed for want of jurisdiction.

And, indeed, if the decision was placed upon the ground that the lands had passed to an innocent purchaser, he would be protected by the doctrine of the common law in that regard. Even Marshall said that the annulling act was restrained either by general principles common to our free institutions, or by the contract clause. It is probable that if the Georgia Land case were to come under decision to-day the court would not hold that an executed grant is a contract. Nevertheless the court declared in 1866 that the principles of the New Jersey Tax case and the Georgia Land case "are now axiomatic in our jurisprudence and are no longer open to controversy." (Von Hoffman v. Quincy, 4 Wall. 550.) The Tax case and the Land case are perhaps not wholly creditable decisions; and Mr. Shirley would have us believe that the College case was gained by pressure on individual judges out of court. But I am unwilling to shatter the image of purity associated with the names of Marshall and Story. When the people lose confidence in their judiciary, the Republic will approach its decline and fall.

Six years after the Georgia case and in 1815, Governor Plumer of New Hampshire addressed a message to the

legislature setting forth that the charter of Dartmouth College, granted by the British King in 1769, made seven of the twelve trustees a quorum, and authorized the board to perpetuate itself by filling vacancies, which principle he declared to be hostile to the spirit and genius of a free people, and ought to be changed by the legislature. The governor took pride in his message, and sent a copy to Jefferson, who had left the presidency several years before, and who replied to the governor, July 21, 1816, cordially approving the recommendation of the message and declar ing that one generation could not make laws which a later generation could not alter: and that the dead could not bind the living. The legislature promptly enacted the recommendation of the governor, and amongst other alterations, changed the name of the college and increased the number of the twelve trustees to twenty-one. The legislature claimed that the charter was a public instrument of civil government and therefore subject to be modified by the legislature; and so the New Hampshire court declared.

The epoch-making decision of Martin v. Hunter's lessee (1 Wheaton 304, 1816) sustaining the revisory power of the Federal court over the State court, had already been pronounced, and the next conspicuous exercise of that power was the College case. The Federal court held that the charter was a mere private grant to the corporators, in consideration of the future performance of duties by them; and that this grant was a contract, the obligation of which was impaired by the changes made, without the consent of the corporators. The New Hampshire court (1 N. H. 111) held merely that the College was a public corporation, for the reason that the corporators had no private interest in the public educational charity. The decision was delivered at Plymouth, Grafton county (the writer's birthplace). That court was then composed of three able judges, Samuel Merchant Richardson, Samuel Bell, and Levi Woodbury, afterwards of the Federal supreme court, who did not sit, being one