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The Green Bag

bankruptcy of the system is patent to all observers. Nor does the history of this case [the Stoddart case, decided by the Court of Criminal Appeal in May of the present year] lend any support to Mr. Lecky's plea for the retention of the jury—that they sometimes saved litigants from the technicality of the bench. The jury did not save Mr. Stoddart from the technicality of the bench." Professional Ethics. "Ethical Problems In volved in Modern Business." Review of ad dresses delivered in Page Lecture Series at Yale in 1908. Current Literature, v. 47, p. 294 (Sept.). These considerations apply to the lawyer as well as to the man of business:— "Despite the acknowledged evils in modern business, there is no reason for losing courage or getting cynical, Mr. Alger affirms. There are many reasons, he thinks, for expecting better things. In a new community—and this is what America has been—a man looks to immediate profit and takes short views of business." But as community life develops "he begins to feel that the 'good name of the house' is his most valuable asset. 'The mer chant or the producer who merely makes money loses, and what is more feels that he loses, something essential when his practices have got him a bad name.'" See Practice. Property and Contract. Three articles deal ing with this subject deserve special notice, the first setting forth the supposedly anoma lous position of corporations under the doc trine of the Dartmouth College case, the second arguing mistakenly that property is created by the state, the third formulating a forceful theory that property is transformed by the state into disability and undermines the life of society. The first of the articles is the following :— "Confusion of Property with Privilege: the Dartmouth College Case." By Jesse F. Orton, A.M. Independent, v. 67, p. 448 (Aug. 26). This article criticizes the decision of the Supreme Court in the Dartmouth College case, and is a vigorous attack upon the doctrine it contains. The reader is informed:— "The principle assumed to have been estab lished in the Dartmouth College case has been refuted and repudiated many times by the federal Supreme Court. The case still has the force of law within a narrowed scope, and it is often referred to in terms of great polite ness. But when the Court musters up the courage to overrule it, few arguments will be needed in addition to its own opinions. Cer tain of the state Supreme Courts, notably that of Ohio, long and persistently stood out against a recognition of the doctrine of this case." This contention that the Supreme Court of the United States has erred in not squarely overruling the doctrine of the Dartmouth Col lege case cannot be sustained. The simple, obvious principle that the legislature ought

not to revoke a grant once made may be con sidered one of the enduring foundation stones of the edifice of modern law. Mr. Orton thinks that when the Great Northern- Northern Pacific merger case came before the United States Supreme Court, the Court in pronouncing judgment practically ignored the bearings of the Dartmouth College case. But it is by no means to be inferred from the fact that the Court construed the charter as not giving unlimited authority to consolidate with other corporations that any right under the contract contained in the charter was impaired. The policy of the law recognizes the fact that the vested property rights which depend upon any legislative grant should no more be disturbed by legislative than by judicial deviation from the principle partially ex pressed by the doctrine of res judicata. The English Parliament may have always had the power to repeal and amend corporate charters, as Mr. Orton says, but that would not consti tute a reason why our legislatures should have the same right. In America, such a right would be exercised only with the most con fusing and harmful consequences, owing to the multiplicity of the state legislatures, and owing to the important difference between the organic constitution of the two countries. The principle of the inviolability of charters once legally granted is essentially sound, and charters ought not to be, as Mr. Orton urges, "at all times open to repeal or amendment." Mr. Orton objects to what he calls the seri ous error in Marshall's decision that Dart mouth College was a private foundation, but this objection is mistaken. It is not only clearly settled in law, but equally clear in reason, that a corporation of a public char acter may be to some extent and for certain purposes a private body. (Andrews' Am. Law sees. 371, 391; Nichols' Eminent Domain, sees. 193, 203.) The second error too confidently imputed to Marshall is less significant. Mr. Orton claims that as the royal charter was merely a grant from the Crown, and had never been confirmed by the English Parliament, it was not a contract between the state of New Hampshire and the college. But the assent of Parliament was not required, in confirmation of the rights of the Crown, before those rights should be bodily transmitted to the new sovereign at the time of the Revolution. The jus publicum that the Crown had held in public lands, for example, forthwith passed to the states, and their legislatures did not have any more than Parliament to confirm the title thus obtained. This writer further argues that the contract clause of the Constitution was designed to include only agreements between private parties, but the innovations of Marshall on the Constitution, of which this case affords by no means a marked example, were but the expression of the central spirit of the Consti tution itself. The doctrine of the Dartmouth College case has not been materially modified by the