Mr. Justice Peckham and the Sherman Act The problem confronting Chief Justice Marshall was that of ascertaining how proceedings so clearly violative of the spirit of the Constitution as those under discussion in the Dartmouth College case could be clearly shown to be in conflict with its letter also, and this problem was solved by a somewhat artificial inter pretation of the clause relating to the obligation of contracts.5 Whether may be historically traceable to the binding character with which charters were invested long before they could have come to be considered as partaking of a contractual nature. A deed of gift has always been, and now is, not less binding on the grantor than a formal contract meeting the requirements of the statute of frauds. In Magna Carta and the Charter of Liberties of Henry I there is phraseology suggestive of a grant without con sideration. The rights of the grantee of a royal charter being protected by the common law rule that royal grants are irrevocable, as securely as rights against the private grantor were protected by the doctrine of estoppel by deed, there was no occasion for the creation of an artificial theory declaring the contractual character of all charters The Supreme Court could have formulated a doctrine of the constitutional security of rights granted by charter without invoking the aid of the contract theory, and could have done this not withstanding its decision in Satterlee v. Mathewson (2 Peters 380). See, for example, Marshall's remarks about the limits of legislative power in Fletcher v. Peck, 6 Cranch 87. 'The disagreement between Marshall and Justice Johnson in the important forerunner of the Dart mouth College case, Fletcher v. Peck (6 Cranch 87) is interesting, the former holding that the contract underlying the grant was executed on one side and practically executory on the other ("a grant implies a contract not to reassert the right of the grantor," p. 137), the latter that it was executed on both sides and therefore "functus officio" (p. 145). Whether the legislative side of the contract is executed or not depends on whether the legis lative obligation is deemed to be that merely to make a valid and secure grant, or that to exercise a continuing protection of the terms of the grant. But just as the doctrine of estoppel in pais in volves no theory of executory covenants, so the doctrine of the inviolability of charters need involve no similar theory. Marshall remarked obiter in Fletcher v. Peck that "a party is always estopped by his own grant" (p. 137). He did not develop the point. Had he done so he might have felt that it was totally unnecessary to propound any theory of contract, an innovation unnecessary with respect to the common law, which amply provided for the security of rights conferred by charter. Thus it was held, for example, by the Supreme Court before the Dartmouth College case came to be decided, that a legislative grant or confirmation of lands for educational purposes could no more be rescinded than other grants.
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the expedient could have been avoided is a question which need not be con sidered. That the end achieved justi fied the means is indubitable, for it was clearly the intention of the framers of the Constitution to protect the rights of private property as truly as the obligation of private contracts. Round the fundamental principle of the Dartmouth College case, a prin ciple of such importance that it prop erly became in Marshall's hands virtually a corollary of the federal Constitution, have successively clustered a group of subsidiary principles which have protected the public from its employment as a possible instrument of oppression. Thus an exclusive or permanent franchise is not to be pre sumed to have been granted without express words to that effect in the charter.6 A monopolistic privilege therefore can arise only by express grant.7 The holder of such a privilege, if it has been granted in consideration of anticipated benefits to the public, Terrett v. Taylor, 9 Cranch 43. Moreover, four years before the decision was rendered in the Dartmouth College case, the Supreme Court, Justice Story writing the opinion, held without any refer ence to the doctrine of contract, that the legislature of a state which had succeeded to the rights of the Crown could no more defeat the intent of a royal grant contained in the charter of a township, setting aside a specified share of the land granted for "a glebe for the Church of England," than such a grant could have been defeated before the Revo lution. Pawlet v. Clark, 9 Cranch 292. 'Charles River Bridge v. Warren Bridge, 11 Peters 420, 9 L. ed. 773. 'The learned dissenting opinion of Justice Story in the Charles River Bridge case can only be treated with the greatest respect, but without regard to the accuracy or inaccuracy of his con tention that the ancient common law rule that grants of franchises are to be construed in favor of the grantor applied to grants out of the King's bounty as opposed to those marked by a money consideration, one cannot readily agree with his remark that the rule of strict construction of charters is not so well suited to the American as to the English sovereign, for the American people so far recognize the public value of these franchises as to be unwilling to concede more than they actually stipulate for in terms. Regarded in this light, the decision in the Charles River Bridge case appears to have been reasonable.
