times, and for a reasonable compensation. A railroad corporation, which carries on the business of a common carrier, at its own expense and risk, and for its own profit, is in the same situation as any other common carrier; and whether the carrier transacts his business over a road which he owns, or over one which the public has built and dedicated to common use, or on the waters of a navigable river, his duties, liabilities, and rights are the same.

This being the sense in which the business is public, and in which the railroad is a public highway,—a sense which does not at all diminish the private ownership, or the control which all private owners may exercise over their own property, unless such control has been in some way expressly curtailed,-the question arises whether a legislative act to regulate the rates of fare and freight, after the grant of a charter authorizing the company to determine its own rates, falls within the reserved power to alter or amend a charter of incorporation, which is found in general terms in many of our State constitutions? Is this an unlimited power? It has been considered heretofore, by very high authorities, that the nature of the act by which a legislature undertakes to alter or amend a charter of incorporation, imposes, or may impose, some restraint upon this general power. It is certain that charters are to be amended or altered by an exercise of what is properly to be regarded as legislative power. Is it, then, an act of legislative power to prescribe for the future what prices may be demanded for commodities or personal services? Is it within the power of any legislature in this country to compel owners of property, whether they are natural or artificial persons, to part with their property, or render their personal services, at their own expense and risk, to the public for prices fixed by the legislature? To me it seems to be very plain that this is not the exercise of legislative power; that it is a mere arbitrary decree, not authorized by a general reservation of power to alter or amend charters, and incapable of being legitimately exercised, unless the State has expressly required the grantees of a charter to accept it on the condition that the legislature may determine the rates which the corporation is to charge for its services. Doubtless such a power can be brought within the field of legislation by the express terms of a charter, because such is the contract. But where there is nothing but a general reservation of a power to alter VOL. CXXXII.-NO. 293.

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or amend a charter, I do not see how such an exercise of power can be said to be within the reservation.*

I have seen it suggested that, under the power to alter, amend, or repeal a charter, it is perhaps possible for a legislature to change, in some cases, or, in other cases, to destroy, contracts between the State itself and the corporation, entered into in the charter. But, without conceding this, it is to be remembered that these are not the only contracts authorized by an act of incorporation. Every railroad corporation must enter into contracts with creditors, who will lend their money to construct and equip the road, and who will take a mortgage security therefor. Such contracts have been made, under the authority of their charters, by nearly every railroad corporation in this country. It has heretofore been held, many times, by the Supreme Court of the United States, that any law of a State which seriously diminishes the property, or the security, or the remedy, that was relied upon by the creditors of a corporation, when they lent their money, or gave their credit, impairs the obligation of their contracts.

Is it, then, a sufficient answer to this to say that such creditors were bound, when they lent their money and took their mortgage security, to know one or both of two things:-either that the State held a reserved power to alter or amend charters, or that it held a general legislative power to treat all private property, the employment of which affects the public generally, as subject to regulation of the price that may be demanded for its use? If it is said that it is the general power of altering or amending a charter of which the creditors were bound to take notice, it is unquestionably true that they must be presumed to have known of its existence; but it remains, nevertheless, a most serious question what this power includes. The creditors certainly were not bound to know, and could not reasonably anticipate, when they lent their money and took their mortgage security, that this reserved power of the State included a power to diminish, at the pleasure of the legislature, the fund out of

*In the two last preceding paragraphs, I have availed myself of the reasoning which I find in a manuscript opinion of the late Hon. Benjamin R. Curtis, of which I possess a copy. It was given in the year 1874, upon the clause in the constitution of Wisconsin which reserved to the legislature a power to alter or repeal all general and special laws. After examining the authorities cited by him, I can see no answer to his positions.

which their interest, and ultimately their principal, were to be paid. No rational person can suppose that money was ever lent to a railroad corporation upon the understanding that the State had reserved such an unlimited and discretionary power over that fund. And, in regard to the doctrine that the creditors knew, or were bound to know, when they lent their money, that all private property in the United States, the employment of which affects the community generally, is subject to a discretionary power of legislative interference with the rates that may be charged for its use, who, before the year 1877, ever heard in this country that the owner of private property grants to the public an interest in its use because it is desirable, or convenient, or beneficial for the public generally to avail themselves of the right to use it, at the expense and risk of the owner? Again, I ask, which of these two sources of power-the reserved authority to alter or amend a charter, or the owner's presumed dedication of his property to public useis the governmental power that existed before the creditors of our railroad corporations took the contracts authorized by the charters, and is therefore to be regarded as an implied part of those contracts? It is scarcely necessary to point out that either of these sources of power, if it existed at all before the contracts of creditors, is limited by nothing but legislative discretion; and that it is a power to deprive the creditors of all beneficial interest in the income upon which they relied when they loaned their money. No doubt they trusted a good deal to legislative discretion, but I am unable to see that they trusted this.

The limits of this article do not admit of further discussion of this great subject. My present purpose has been simply to show that its further judicial consideration is imperatively called for; and that the present state of the adjudications does not preclude a reexamination of some of the doctrines that appear to have received the sanction of a majority of the highest tribunal, but from which it is impossible to extract, in a judicial sense, all that has been claimed by the advocates for legislative interference with the contracts of railroad corporations.

GEORGE TICKNOR CURTIS.

THE HISTORIC GENESIS OF PROTESTANTISM.

IN the year 1609 one of the most atrocious crimes of which history preserves the record was perpetrated by the Spanish government. The Moriscoes, or Christianized descendants of the conquered Moors, had long been objects of suspicion and hatred to the Spaniards, and especially to the Spanish clergy. During the sixteenth century they had been so cruelly treated that in 1568 they had risen in rebellion among the mountains of Granada, and it had taken three years of obstinate fighting to bring them to terms. Their defeat was so crushing that it was no longer possible to regard them as politically dangerous, but their orthodoxy was strongly suspected, inasmuch as the grandparents of the present generation had been converted to Christianity only by brute force. In 1602 the Archbishop of Valencia proposed that all the Moriscoes in the kingdom, with the exception of children under seven years of age, should be forthwith driven into exile, that the nation might no longer be polluted by the slightest suspicion of unbelief. The Archbishop of Toledo, primate of Spain, heartily agreed with his reverend brother, save as far as concerned the little children, whom he thought should be included in the general banishment. To Bleda, the famous Dominican, even these measures seemed insufficient, and he argued that all the Moriscoes in Spain-men, women, and children even to the new-born babe-should be ruthlessly murdered, "because it was impossible to tell which of them were Christians at heart, and it was enough to leave the matter to God, who knew his own, and who would reward in the next world those who were really Catholics." The views of the Archbishop of Toledo finally prevailed, and in 1609, as Mr. Buckle puts it, "about one million of the most industrious inhabitants of Spain were hunted out like beasts, because the sincerity of their

religious opinions was doubtful." Their deportation to Morocco was attended by characteristic barbarities. The number of those massacred on the way seems to have exceeded the number of the victims of Saint Bartholomew; while of those who reached Africa thousands were enslaved by Mohammedan Moors, or slain by robbers, or starved in the desert.

Now, these Moriscoes, thus driven from the land by ecclesiastical bigotry, were the most skillful laborers Spain possessed. By their expulsion the manufacture of silk and paper was destroyed, the cultivation of sugar, rice, and cotton came to an end, the wool-trade stopped, and irrigation of the soil was discontinued. The disturbance of industry, and the consequent distress, were so great and so far-reaching that by the end of the seventeenth century the population of Madrid had decreased by one-half, and that of Seville by three-quarters; whole villages were deserted, large portions of the arable land went out of cultivation, and brigandage gained a foot-hold which it has ever since kept. In short, the economic ruin of Spain may be said to date from the expulsion of the Moriscoes: after nearly three hundred years the country has not yet recovered from the disastrous effects of that unparalleled crime and blunder.

Yet this atrocious deed was done with the unanimous approval of the Spanish people. Even the gentle-hearted and high-minded Cervantes applauded it, while Davila characterized it as the most glorious event in all Spanish history. Nay, even in recent times, the eminent historian Lafuente, while recognizing the terrible economic results of the measure, maintains that it was, nevertheless, productive of immense benefit by securing the "religious unity" of the whole people. Here we have the true Spanish idea-or, to speak more accurately, the true ecclesiastical idea, which, through an unfortunate combination of circumstances, has always dominated the Spaniards more completely than any other European people, but which has wrought mischief enough in other countries than Spain. To insure absolute "religious unity," to insure that from the Pyrenees to Gibraltar all people should think exactly alike about questions which are confessedly unfathomable by the human mind, this seemed to the Spaniard an end of such supreme importance as to justify the destruction of two hundred thousand lives, and the overthrow of some of the chief industries of the kingdom. The annals of persecution in other countries serve