The Albany register. [volume] (Albany, Or.) 1868-18??, 1874-02-28

melll.
In spite of all these facts the
writer in the Reriec draws his
sharp cimeter aud assaults the castle
within which these huge corpora
tons imagine themselves securely
intrenched He attempts to show
that the decision was wrong in
principle, and that, if it is not over
ruled, it should be SO modified as
to permit such corrective legislation
concerning corporate franchises as
will provide for the public good.
lie states as historical facts that the
Na'lison papers were not published
until 1910, and that the Journal OF
the Constitutional Convention,
which enacted the provision CON
cernmg the inyiolabil ty ofcoutracts,
was not published until after the de-
csionofthe Dartmouth College case.
I'le history ofthe prohibItory clause
is as follows:
".lnd in Just preservation Of
rights and property, it is understood
and declared that no law ought ever
to be made or have force in said
territory that shall in any manner
whatever Interfere with or affect
private contracts or engagements
bona tide and without fraud previ-
ou>ly formed"
On August 2Sth of the same year
tie Constitutional Convention was
considering artic e II, when Mr.
King moved to incorporate the
above provision and make it appli-
cable to the States. After some
discussion Mr.. Rutledge moved, IN
stead OF Mr.. Kings motion, that
States should have no right to
"pa>s i lis Of attainder nor retro
slpctive (in the printed Journal ex
post tacto) laws and it carried,
st ven States voting aye and two no.
On the next day Mr.. Dickinson
stated that Oh reading Blackstone'S
Commentaries lie had discovered
that ''tle term ex post tacto related
to criminal cases only, and that the
provision as it stood would not re-
strain the states from passing retro
Spective laws in civil cases" Af
terwards, but upon whose motion
does not appear, the clause was al
tered 50 a. to read as it does now,
"paSs any bill of attainder, ex post
tacto law, or law impairing the OBJ
legation OF contracts" Mr.. Curtis,
in hls History Of the Constitution,
thinks it is clear from the debates
that the object OF changing the
words OF the prohibition in the or
dinance OF 1887 was to diminish
and not to increase the force Of the
prohibition. In view of these facts
the writer inters that the Supreme
Court would have decided differ
emily, or would have been more
guarded in its decision of the Dart
mouth College case, if the full bis
tory Of the enactment ofthat clause
had been before it. He also alleges
that, while the case was carefully
prepared and cogently argued by
Webster and iopkinson for the
plaintiff, it was imperfectly argued
by Mr. Writ and Mr.. Holmes tor
the defendant. In proof Of this, he
quotes from letter written by
Webster to Mr.. Mason on the 18th
Of March, 1918, in which he says,
speaking Of HoInes' argument:
"Cpon the whole he gave us
three hours Of the merest stuff that
was ever uttered in a County Court.
y Writ followed. He is good
deal OF a lawyer, and has very quick
perceptions, and handsome power
Of argument. But he seemed to
treat this case as If his side could
furnish nothing but defamation :
lie made an apology for himself
that be had not had time to study
the case, and had hardly thought
OF it until he was called on"
This is very interesting history,
and would seem to indicate that
II