1815. This logomachy of vituperation was opened by President Wheelock

who wrote an unsigned attack upon the Trustees.[637] Another pamphlet followed immediately in support of that of Wheelock.[638] The Trustees quickly answered by means of two pamphlets.[639] The Wheelock faction instantly replied.[640] With the animosity and diligence of political, religious, and personal enemies, the adherents of the hostile factions circulated these pamphlets among the people, who became greatly excited. On August 26, 1815, the Trustees removed Wheelock from the office of President,[641] and thereby increased the public agitation. Two days after Wheelock's removal, the Trustees elected as his successor the Reverend Francis Brown of Yarmouth, Maine.[642] During these years of increasing dissension, political parties were gradually drawn into the controversy; at the climax of it, the Federalists found themselves supporting the cause of the Trustees and the Republicans that of Wheelock. In a general, and yet quite definite, way the issue shaped itself into the maintenance of chartered rights and the established religious order, as against reform in college management and equality of religious sects. Into this issue was woven a contest over the State Judiciary. The Judiciary laws of New Hampshire were confused and inadequate and the courts had fallen in dignity. During the Republican control of the State, Republicans had been appointed to all judicial positions.[643] When, in 1813, the Federalists recovered supremacy, they, in turn, enacted a statute, the effect of which was the ousting of the Republican judges and the appointment of Federalists in their stead.[644] The Republicans made loud and savage outcry against this Federalist "outrage." Upon questions so absurdly incongruous a political campaign raged throughout New Hampshire during the autumn and winter of 1815. In March, 1816, the Republicans elected William Plumer Governor,[645] and a Republican majority was sent to the Legislature.[646] Bills for the reform of the Judiciary[647] and the management of Dartmouth College[648] were introduced. That relating to Dartmouth changed the name of the College to "Dartmouth University," increased the number of Trustees from twelve to twenty-one, provided for a Board of twenty-five Overseers with a veto power over acts of the Trustees, and directed the President of the "University" to report annually to the Governor of the State upon the management and conditions of the institution. The Governor and Council of State were empowered to appoint the Overseers; to fill up the existing Board of Trustees to the number of twenty-one; and authorized to inspect the "University" and report to the Legislature concerning it at least once in every five years.[649] In effect the act annulled the charter and brought the College under the control of the Legislature. The bitterness occasioned by the passage of this legislation was intense. Seventy-five members of the House entered upon the Journal their formal and emphatic protest.[650] The old Trustees adopted elaborate resolutions, declining to accept the provisions of the law and assigning many reasons for their action. Among their criticisms of the act, the fact that it violated the contract clause of the National Constitution was mentioned almost incidentally. In summing up their argument, the Trustees declared that "if the act ... has its intended operation and effect, every literary institution in the State will hereafter hold its rights, privileges and property, not according to the settled established principles of law, but according to the arbitrary will and pleasure of every successive Legislature."[651] In later resolutions the old Trustees declined to accept the provisions of the law, "but do hereby expressly refuse to act under the same."[652] The Governor and Council promptly appointed Trustees and Overseers of the new University; among the latter was Joseph Story. The old Trustees were defiant and continued to run the College. When the winter session of the Legislature met, Governor Plumer sharply denounced their action;[653] and two laws were passed for the enforcement of the College Acts, the second of which provided that any person assuming to act as trustee or officer of the College, except as provided by law, should be fined $500 for each offense.[654] The Trustees of the University "removed" the old Trustees of the College and the President, and the professors who adhered to them.[655] Each side took its case to the people.[656] The new régime ousted the old faculty from the College buildings and the faculty of the University were installed in them. Wheelock was elected President of the State institution.[657] The College faculty procured quarters in Rowley Hall near by, and there continued their work, the students mostly adhering to them.[658] The College Trustees took great pains to get the opinion of the best lawyers throughout New Hampshire,[659] as well as the advice of their immediate counsel, Jeremiah Mason, Jeremiah Smith, and Daniel Webster, the three ablest members of the New England bar, all three of them accomplished politicians.[660] William H. Woodward, who for years had been Secretary and Treasurer of the College, had in his possession the records, account books, and seal. As one of the Wheelock faction he declined to recognize the College Trustees and acted with the Board of the University. The College Trustees removed him from his official position on the College Board;[661] and on February 8, 1817, brought suit against him in the Court of Common Pleas of Grafton County for the recovery of the original charter, the books of record and account, and the common seal--all of the value of $50,000. By the consent of the parties the case was taken directly before the Superior Court of Appeals, and was argued upon an agreed state of facts returned by the jury in the form of a special verdict.[662] There were two arguments in the Court of Appeals, the first during May and the second during September, 1817. The court consisted of William M. Richardson, Chief Justice, and Samuel Bell and Levi Woodbury, Associate Justices, all Republicans appointed by Governor Plumer. Mason, Smith, and Webster made uncommonly able and learned arguments. The University was represented by George Sullivan and Ichabod Bartlett, who, while good lawyers, were no match for the legal triumvirate that appeared for the College.[663] The principle upon which Marshall finally overthrew the New Hampshire law was given a minor place[664] in the plans as well as in the arguments of Webster, Mason, and Smith. The Superior Court of Appeals decided against the College. The opinion, delivered by Chief Justice Richardson, is able and persuasive. "A corporation, all of whose franchises are exercised for publick purposes, is a publick corporation"--a gift to such a corporation "is in reality a gift to the publick."[665] The corporation of Dartmouth College is therefore public. "Who has any private interest either in the objects or the property of this institution?" If all its "property ... were destroyed, the loss would be exclusively publick." The Trustees, as individuals, would lose nothing. "The office of trustee of Dartmouth College is, in fact, a publick trust, as much so as the office of governor, or of judge of this court."[666] No provision in the State or National Constitution prevents the control of the College by the Legislature. The Constitutional provisions cited by counsel for the College[667] "were, most manifestly, intended to protect private rights only."[668] No court has ever yet decided that such a charter as that of Dartmouth College is in violation of the contract clause of the National Constitution, which "was obviously intended to protect private rights of property, and embraces all contracts relating to private property." This clause "was not intended to limit the power of the states" over their officers or "their own civil institutions";[669] otherwise divorce laws would be void. So would acts repealing or modifying laws under which the judges, sheriffs, and other officers were appointed. Even if the royal charter is a contract, it does not, cannot forever, prevent the Legislature from modifying it for the general good (as, for instance, by increasing the number of trustees) "however strongly the publick interest might require" this to be done. "Such a contract, in relation to a publick institution, would ... be absurd and repugnant to the principles of all government. The king had no power to make such a contract," and neither has the Legislature. If the act of June 27 had provided that "the twenty-one trustees should forever have the exclusive controul of this institution, and that no future legislature should add to their number," it would be as invalid as an act that the "number of judges of this court should never be augmented."[670] It is against "sound policy," Richardson affirmed, to place the great institutions of learning "within the absolute controul of a few individuals, and out of the controul of the sovereign power.... It is a matter of too great moment, too intimately connected with the publick welfare and prosperity, to be thus entrusted in the hands of a few."[671] So the New Hampshire court adjudged that the College Acts were valid and binding upon the old Trustees "without acceptance thereof, or assent thereto by them." And the court specifically declared that such legislation was "not repugnant to the constitution of the United States."[672] Immediately the case was taken to the Supreme Court by writ of error, which assigned the violation of the National Constitution by the College Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the argument before a full bench.[674] Only a few auditors were present, and these were lawyers[675] who were in Washington to argue other cases.[676] Stirred as New Hampshire and the New England States were by the College controversy, the remainder of the country appears to have taken no interest in it. Indeed, west and south of the Hudson, the people seem to have known nothing of the quarrel. The Capital was either ignorant or indifferent. Moreover, Webster had not, as yet, made that great reputation, in Washington, as a lawyer as well as an orator which, later, became his peculiar crown of glory. At any rate, the public was not drawn to the court-room on that occasion.[677] The argument was one of the shortest ever made in a notable case before the Supreme Court during the twenty-eight years of its existence up to this time. Not three full days were consumed by counsel on both sides--a space of time frequently occupied by a single speaker in hearings of important causes.[678] In talents, bearing, and preparation the attorneys for the College were as much superior to those for the University as, in the Chase impeachment trial, the counsel for the defense were stronger than the House managers.[679] Indeed, the similarity of the arguments in the Chase trial and in the Dartmouth case, in respect to the strength and preparation of opposing counsel, is notable; and in both cases the victory came to the side having the abler and better-prepared advocates. With Webster for the College was Joseph Hopkinson of Philadelphia, who had so distinguished himself in the Chase trial exactly thirteen years earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader of the Philadelphia bar and one of the most accomplished of American lawyers.[680] It would seem incredible that sensible men could have selected such counsel to argue serious questions before any court as those who represented the University in this vitally important controversy. The obvious explanation is that the State officials and the University Trustees were so certain of winning that they did not consider the employment of powerful and expensive attorneys to be necessary.[681] In fact, the belief was general that the contest was practically over and that the appeal of the College to the Supreme Court was the pursuit of a feeble and forlorn hope. Even after his powerful and impressive argument in the Supreme Court, Webster declared that he had never allowed himself "to indulge any great hopes of success."[682] It was not unnatural, then, that the State and the University should neglect to employ adequate counsel. John Holmes, a Representative in Congress from that part of Massachusetts which afterward became the State of Maine, appeared for the University. He was notoriously unfitted to argue a legal question of any weight in any court. He was a busy, agile, talkative politician of the roustabout, hail-fellow-well-met variety, "a power-on-the-stump" orator, gifted with cheap wit and tawdry eloquence.[683] Associated with Holmes was William Wirt, recently appointed Attorney-General. At that particular time Wirt was all but crushed by overwork, and without either leisure or strength to master the case and prepare an argument.[684] Never in Wirt's life did he appear in any case so poorly equipped as he was in the Dartmouth controversy.[685] Webster's address was a combination of the arguments made by Mason and Smith in the New Hampshire court. Although the only question before the Supreme Court was whether the College Acts violated the contract clause of the Constitution, Webster gave comparatively scant attention to it; or, perhaps it might be said that most of his argument was devoted to laying the foundation for his brief reasoning on the main question. In laying this foundation, Webster cleverly brought before the court his version of the history of the College, the situation in New Hampshire, the plight of institutions like Dartmouth, if the College Acts were permitted to stand. The facts were, said Webster, that Wheelock had founded a private charity; that, to perpetuate this, the charter created a corporation by the name of "The Trustees of Dartmouth College," with the powers, privileges, immunities, and limitations set forth in the charter. That instrument provided for no public funds, but only for the perpetuation and convenient management of the private charity. For nearly half a century the College "thus created had existed, uninterruptedly, and usefully." Then its happy and prosperous career was broken by the rude and despoiling hands of the Legislature of the State which the College had so blessed by the education of New Hampshire youth. What has the Legislature done to the College? It has created a new corporation and transferred to it "all the _property_, _rights_, _powers_, _liberties and privileges_ of the old corporation." The spirit and the letter of the charter were wholly changed by the College Acts.[686] Moreover, the old Trustees "are to be _punished_" for not accepting these revolutionary laws. A single fact reveals the confiscatory nature of these statutes: Under the charter the president, professors, and tutors of the College had a right to their places and salaries, "subject to the twelve trustees alone"; the College Acts change all this and make the faculty "accountable to new masters." If the Legislature can make such alterations, it can abolish the charter "rights and privileges altogether." In short, if this legislation is sustained, the old Trustees "have no _rights_, _liberties_, _franchises_, _property or privileges_, which the legislature may not revoke, annul, alienate or transfer to others whenever it sees fit." Such acts are against "common right" as well as violations of the State and National Constitutions.[687] Although, says Webster, nothing is before the court but the single question of the violation of the National Constitution, he will compare the New Hampshire laws with "fundamental principles" in order that the court may see "their true nature and character." Regardless of written constitutions, "these acts are not the exercise of a power properly legislative." They take away "vested rights"; but this involves a "forfeiture ... to ... declare which is the proper province of the judiciary."[688] Dartmouth College is not a civil but "an _eleemosynary_ corporation," a "private charity"; and, as such, not subject to the control of public authorities.[689] Does Dartmouth College stand alone in this respect? No! Practically all American institutions of learning have been "established ... by incorporating governours, or trustees.... All such corporations are ... in the strictest legal sense a private charity." Even Harvard has not "any surer title than Dartmouth College. It may, to-day, have more friends; but to-morrow it may have more enemies. Its legal rights are the same. So also of Yale College; and indeed of all others."[690] From the time of Magna Charta the privilege of being a member of such eleemosynary corporations "has been the object of legal protection." To contend that this privilege may be "taken away," because the Trustees derive no "pecuniary benefit" from it, is "an extremely narrow view." As well say that if the charter had provided that each Trustee should be given a "commission on the disbursement of the funds," his status and the nature of the corporation would have been changed from public to private. Are the rights of the Trustees any the less sacred "because they have undertaken to administer it [the trust] gratuitously?... As if the law regarded no rights but the rights of money, and of visible tangible property!"[691] The doctrine that all property "of which the use may be beneficial to the publick, belongs therefore to the publick," is without principle or precedent. In this very matter of Dartmouth College, Wheelock might well have "conveyed his property to trustees, for precisely such uses as are described in this charter"--yet nobody would contend that any Legislature could overthrow such a private act. "Who ever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a _college_, or _hospital_, or an _asylum_, was, in reality, nothing but a gift to the state?"[692] Vermont has given lands to the College; was this a gift to New Hampshire? "What hinders Vermont ... from resuming her grants," upon the ground that she, equally with New Hampshire, is "the representative of the publick?" In 1794, Vermont had "granted to the respective towns in that state, certain glebe lands lying within those towns _for the sole use and support of religious worship_." Five years later, the Legislature of that State repealed this grant; "but this court declared[693] that the act of 1794, 'so far as it granted the glebes to the towns, _could not afterwards be repealed by the legislature, so as to divest the rights of the towns under the grant_.'"[694] So with the Trustees of Dartmouth College. The property entrusted to them was "private property"; and the right to "administer the funds, and ... govern the college was a _franchise_ and _privilege_, solemnly granted to them," which no Legislature can annul. "The use being publick in no way diminishes their legal estate in the property, or their title to the franchise." Since "the acts in question violate property, ... take away privileges, immunities, and franchises, ... deny to the trustees the protection of the law," and "are retrospective in their operation," they are, in all respects, "against the constitution of New Hampshire."[695] It will be perceived by now that Webster relied chiefly on abstract justice. His main point was that, if chartered rights could be interfered with at all, such action was inherently beyond the power of the Legislature, and belonged exclusively to the Judiciary. In this Webster was rigidly following Smith and Mason, neither of whom depended on the violation of the contract clause of the National Constitution any more than did Webster. Well did Webster know that the Supreme Court of the United States could not consider the violation of a State constitution by a State law. He merely indulged in a device of argument to bring before Marshall and the Associate Justices those "fundamental principles," old as Magna Charta, and embalmed in the State Constitution, which protect private property from confiscation.[696] Toward the close of his argument, Webster discusses the infraction of the National Constitution by the New Hampshire College Acts, a violation the charge of which alone gave the Supreme Court jurisdiction over the case. What, asks Webster, is the meaning of the words, "no state shall pass any ... law impairing the obligation of contracts"? Madison, in the _Federalist_, clearly states that such laws "'are contrary to the first principles of the social compact, and to every principle of sound legislation.'" But this is not enough. "Our own experience," continues Madison, "has taught us ... that additional fences" should be erected against spoliations of "personal security and private rights." This was the reason for inserting the contract clause in the National Constitution--a provision much desired by the "sober people of America," who had grown "weary of the fluctuating policy" of the State Governments and beheld with anger "that sudden changes, and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators." These, said Webster, were the words of James Madison in Number 44 of the _Federalist_. High as such authority is, one still more exalted and final has spoken, and upon the precise point now in controversy. That authority is the Supreme Court itself. In Fletcher _vs._ Peck[697] this very tribunal declared specifically that "a _grant_ is a contract, within the meaning of this provision; and that a grant by a state is also a contract, as much as the grant of an individual."[698] This court went even further when, in New Jersey _vs._ Wilson,[699] it decided that "a grant by a state before the revolution is as much to be protected as a grant since."[700] The principle announced in these decisions was not new, even in America. Even before Fletcher _vs._ Peck and New Jersey _vs._ Wilson, this court denied[701] that a Legislature "can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they please, without the consent or default of the corporators ...; and we think ourselves standing upon the principles of _natural justice_, upon the _fundamental laws of every free government_, upon the spirit and letter of the constitution of the United States, and upon the decisions of the most respectable judicial tribunals, in resisting such a doctrine."[702] From the beginning of our Government until this very hour, continues Webster, such has been the uniform language of this honorable court. The principle that a Legislature cannot "repeal statutes creating private corporations" must be considered as settled. It follows, then, that if a Legislature cannot repeal such laws entirely, it cannot repeal them in part--cannot "impair them, or essentially alter them without the consent of the corporators."[703] In the case last cited[704] the property granted was land; but the Dartmouth charter "is embraced within the very terms of that decision," since "a grant of corporate powers and privileges is as much a _contract_ as a grant of land."[705] Even the State court concedes that if Dartmouth College is a private corporation, "its rights stand on the same ground as those of an individual"; and that tribunal rests its judgment against the College on the sole ground that it is a public corporation.[706] Dartmouth College is not the only institution affected by this invasion of chartered rights. "Every college, and all the literary institutions of the country" are imperiled. All of them exist because of "the inviolability of their charters." Shall their fate depend upon "the rise and fall of popular parties, and the fluctuations of political opinions"? If so, "colleges and halls will ... become a theatre for the contention of politicks. Party and faction will be cherished in the places consecrated to piety and learning." "We had hoped, earnestly hoped," exclaimed Webster, "that the State court would protect Dartmouth College. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever." He closed with a long Latin quotation, not a word of which Marshall understood, but which, delivered in Webster's sonorous tones and with Webster's histrionic power, must have been prodigiously impressive.[707] Undoubtedly it was at this point that the incomparable actor, lawyer, and orator added to his prepared peroration that dramatic passage which has found a permanent place in the literature of emotional eloquence. Although given to the world a quarter of a century after Webster's speech was delivered, and transmitted through two men of vivid and creative imaginations, there certainly is some foundation for the story. Rufus Choate in his "Eulogy of Webster," delivered at Dartmouth College in 1853, told, for the first time, of the incident as narrated to him by Professor Chauncey A. Goodrich, who heard Webster's argument. When Webster had apparently finished, says Goodrich, he "stood for some moments silent before the Court, while every eye was fixed intently upon him." At length, addressing the Chief Justice, Webster delivered that famous peroration ending: "'Sir, you may destroy this little Institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work! You must extinguish, one after another, all those great lights of science which, for more than a century, have thrown their radiance over our land! "'It is, Sir, as I have said, a small College. And yet, _there are those who love it_----'"[708] Then, testifies Goodrich, Webster broke down with emotion, his lips quivered, his cheeks trembled, his eyes filled with tears, his voice choked. In a "few broken words of tenderness" he spoke of his love for Dartmouth in such fashion that the listeners were impressed with "the recollections of father, mother, brother, and all the trials and privations through which he had made his way into life."[709] Goodrich describes the scene in the court-room, "during these two or three minutes," thus: "Chief Justice Marshall, with his tall and gaunt figure bent over as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and eyes suffused with tears; Mr. Justice Washington at his side,--with his small and emaciated frame, and countenance more like marble than I ever saw on any other human being,--leaning forward with an eager, troubled look; and the remainder of the Court, at the two extremities, pressing, as it were, toward a single point, while the audience below were wrapping themselves round in closer folds beneath the bench to catch each look, and every movement of the speaker's face." Recovering "his composure, and fixing his keen eye on the Chief Justice," Webster, "in that deep tone with which he sometimes thrilled the heart of an audience," exclaimed: "'Sir, I know not how others may feel,' (glancing at the opponents of the College before him,) 'but, for myself, when I see my Alma Mater surrounded, like Cæsar in the senate-house, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me, and say, _Et tu quoque, mi fili!_'"[710] Exclusive of his emotional finish, Webster's whole address was made up from the arguments of Jeremiah Mason and Jeremiah Smith in the State court.[711] This fact Webster privately admitted, although he never publicly gave his associates the credit.[712] When Farrar's "Report," containing Mason's argument, was published, Story wrote Mason that he was "exceedingly pleased" with it. "I always had a desire that the question should be put upon the broad basis you have stated; and it was a matter of regret that we were so stinted in jurisdiction in the Supreme Court, that half the argument could not be met and enforced. You need not fear a comparison of your argument with any in our annals."[713] Thus Story makes plain, what is apparent on the face of his own and Marshall's opinion, that he considered the master question involved to be that the College Acts were violative of fundamental principles of government. Could the Supreme Court have passed upon the case without regard to the Constitution, there can be no doubt that the decision would have been against the validity of the New Hampshire laws upon the ground on which Mason, Smith, and Webster chiefly relied. Webster, as we have seen, had little faith in winning on the contract clause and was nervously anxious that the controversy should be presented to the Supreme Court by means of a case which would give that tribunal greater latitude than was afforded by the "stinted jurisdiction" of which Story complained. Indeed, Story openly expressed impatience that the court was restricted to a consideration of the contract clause. Upon his return to Massachusetts after the argument, Story as much as told Webster that another suit should be brought which could be taken to the Supreme Court, and which would permit the court to deal with all the questions raised by the New Hampshire College Acts. Webster's report of this conversation is vital to an understanding of the views of the Chief Justice, as well as of those of Story, since the latter undoubtedly stated Marshall's views as well as his own. "I saw Judge Story as I came along," Webster reported to Mason. "He is evidently expecting a case which shall present all the questions. It is not of great consequence whether the actions or action, go up at this term, except that it would give it an earlier standing on the docket next winter. "The question which we must raise in one of these actions, is, 'whether, by the _general principles of our governments_, the State Legislatures be not restrained from divesting vested rights?' This, of course, independent of the constitutional provision respecting contracts. On this question [the maintenance of vested rights by "general principles"] I have great confidence in a decision on the right side. This is the proposition with which you began your argument at Exeter, and which I endeavored to state from your minutes at Washington.... On _general_ principles, I am very confident the court at Washington would be with us."[714] Holmes followed Webster. "The God-like Daniel" could not have wished for a more striking contrast to himself. In figure, bearing, voice, eye, intellect, and personality, the Maine Congressman, politician, and stump-speaker, was the antithesis of Webster. For three hours Holmes declaimed "the merest stuff that was ever uttered in a county court."[715] His "argument" was a diffuse and florid repetition of the opinion of Chief Justice Richardson, and was one of those empty and long-winded speeches which Marshall particularly disliked. Wirt did his best to repair the damage done by Holmes; but he was so indifferently prepared,[716] and so physically exhausted, that, breaking down in the midst of his address, he asked the court to adjourn that he might finish next day;[717] and this the bored and weary Justices were only too willing to do. Wirt added nothing to the reasoning and facts of Richardson's opinion which was in the hands of Marshall and his associates. The argument was closed by Joseph Hopkinson; and here again Fate acted as stage manager for Dartmouth, since the author of "Hail Columbia"[718] was as handsome and impressive a man as Webster, though of an exactly opposite type. His face was that of the lifelong student, thoughtful and refined. His voice, though light, had a golden tone. His manner was quiet, yet distinguished. [Illustration: JOSEPH HOPKINSON] Joseph Hopkinson showed breeding in every look, movement, word, and intonation.[719] He had a beautiful and highly trained mind, equipped with immense and accurate knowledge systematically arranged.[720] It is unfortunate that space does not permit even a brief _précis_ of Hopkinson's admirable argument.[721] He quite justified Webster's assurance to Brown that "Mr. Hopkinson ... will do all that man can do."[722] At eleven o'clock of March 13, 1818, the morning after the argument was concluded, Marshall announced that some judges were of "different opinions, and that some judges had not formed opinions; consequently, the cause must be continued."[723] On the following day the court adjourned. Marshall, Washington, and Story[724] were for the College, Duval and Todd were against it, and Livingston and Johnson had not made up their minds.[725] During the year that intervened before the court again met in February, 1819, hope sprang up in the hearts of Dartmouth's friends, and they became incessantly active in every legitimate way. Webster's argument was printed and placed in the hands of all influential lawyers in New England. Chancellor James Kent of New York was looked upon by the bench and bar of the whole country as the most learned of American jurists and, next to Marshall, the ablest.[726] The views of no other judge were so sought after by his fellow occupants of the bench. Charles Marsh of New Hampshire, one of the Trustees of the College and a warm friend of Kent, sent him Webster's argument. While on a vacation in Vermont Kent had read the opinion of Chief Justice Richardson and, "on a hasty perusal of it," was at first inclined to think the College Acts valid, because he was "led by the opinion to assume the fact that Dartmouth College was a public establishment for purposes of a general nature."[727] Webster's argument changed Kent's views. During the summer of 1818, Justice Johnson, of the National Supreme Court, was in Albany, where Kent lived, and conferred with the Chancellor about the Dartmouth case. Kent told Johnson that he thought the New Hampshire College Acts to be against natural right and in violation of the contract clause of the National Constitution.[728] It seems fairly certain also that Livingston asked for the Chancellor's opinion, and was influenced by it. Webster sent Story, with whom he was on terms of cordial intimacy, "five copies of our argument." Evidently Webster now knew that Story was unalterably for the College, for he adds these otherwise startling sentences: "If you send one of them to each of such of the judges as you think proper, you will of course do it in the manner least likely to lead to a feeling that any indecorum has been committed by the plaintiffs."[729] In some way, probably from the fact that Story was an intimate friend of Plumer, a rumor had spread, before the case was argued, that he was against the College Trustees. Doubtless this impression was strengthened by the fact that Governor Plumer had appointed Story one of the Board of Overseers of the new University. No shrewder politician than Plumer ever was produced by New England. But Story declined the appointment.[730] He had been compromised, however, in the eyes of both sides. The friends of the College were discouraged, angered, frightened.[731] In great apprehension, Charles Marsh, one of the College Trustees, wrote Hopkinson of Story's appointment as Overseer of the University and of the rumor in circulation. Hopkinson answered heatedly that he would object to Story's sitting in the case if the reports could be confirmed.[732] Although the efforts of the College to get its case before Kent were praiseworthy rather than reprehensible, and although no smallest item of testimony had been adduced by eager searchers for something unethical, nevertheless out of the circumstances just related has been woven, from the materials of eager imaginations, a network of suspicion involving the integrity of the Supreme Court in the Dartmouth decision.[733] Meanwhile the news had spread of the humiliating failure before the Supreme Court of the flamboyant Holmes and the tired and exhausted Wirt as contrasted with the splendid efforts of Webster and Hopkinson. The New Hampshire officials and the University at last realized the mistake they had made in not employing able counsel, and resolved to remedy their blunder by securing the acknowledged leader of the American bar whose primacy no judge or lawyer in the country denied. They did what they should have done at the beginning--they retained William Pinkney of Maryland. Traveling with him in the stage during the autumn of 1818, Hopkinson learned that the great lawyer had been engaged by the University. Moreover, with characteristic indiscretion, Pinkney told Hopkinson that he intended to request a reargument at the approaching session of the Supreme Court. In alarm, Hopkinson instantly wrote Webster,[734] who was dismayed by the news. Of all men the one Webster did not want to meet in forensic combat was the legal Colossus from Baltimore.[735] Pinkney applied himself to the preparation of the case with a diligence and energy uncommon even for that most laborious and painstaking of lawyers. Apparently he had no doubt that the Supreme Court would grant his motion for a reargument. It was generally believed that some of the Justices had not made up their minds; rearguments, under such circumstances, were usually granted and sometimes required by the court; and William Pinkney was the most highly regarded by that tribunal of all practitioners before it. So, on February 1, 1819, he took the Washington stage at Baltimore, prepared at every point for the supreme effort of his brilliant career.[736] Pinkney's purpose was, of course, well advertised by this time. By nobody was it better understood than by Marshall and, indeed, by every Justice of the Supreme Court. All of them, except Duval and Todd, had come to an agreement and consented to the opinion which Marshall had prepared since the adjournment the previous year.[737] None of them were minded to permit the case to be reopened. Most emphatically John Marshall was not. When, at eleven o'clock, February 2, 1819, the marshal of the court announced "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States," Marshall, at the head of his robed associates, walked to his place, he beheld Pinkney rise, as did all others in the room, to greet the court. Well did Marshall know that, at the first opportunity, Pinkney would ask for a reargument. From all accounts it would appear that Pinkney was in the act of addressing the court when the Chief Justice, seemingly unaware of his presence, placidly announced that the court had come to a decision and began reading his momentous opinion.[738] After a few introductory sentences the Chief Justice came abruptly to the main point of the dispute: "This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a state is to be revised: an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity, with which it was formed. On more than one occasion this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case would it pronounce a legislative act to be contrary to the constitution. "But the American people have said, in the constitution of the United States, that 'no state shall pass any bill of attainder, _ex post facto_ law, or law impairing the obligation of contracts.' In the same instrument they have also said, 'that the judicial power shall extend to all cases in law and equity arising under the constitution.' On the judges of this court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink."[739] Then Marshall, with, for him, amazing brevity, states the essential provisions of the charter and of the State law that modified it;[740] and continues, almost curtly: "It can require no argument to prove that the circumstances of this case constitute a contract." On the faith of the charter "large contributions" to "a religious and literary institution" are conveyed to a corporation created by that charter. Indeed, in the very application it is stated that these funds will be so applied. "Surely in this transaction every ingredient of a complete and legitimate contract is to be found."[741] This being so, is such a contract "protected" by the Constitution, and do the New Hampshire College Acts impair that contract? Marshall states clearly and fairly Chief Justice Richardson's argument that to construe the contract clause so broadly as to cover the Dartmouth charter would prevent legislative control of public offices, and even make divorce laws invalid; and that the intention of the framers of the Constitution was to confine the operation of the contract clause to the protection of property rights, as the history of the times plainly shows.[742] All this, says Marshall, "may be admitted." The contract clause "never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice." Divorce laws are not included, of course--they merely enable a court, "not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other." The "point on which the cause essentially depends" is "the true construction" of the Dartmouth charter. If that instrument grants "political power," creates a "civil institution" as an instrument of government; "if the funds of the college be public property," or if the State Government "be alone interested in its transactions," the Legislature may do what it likes "unrestrained" by the National Constitution.[743] If, on the other hand, Dartmouth "be a private eleemosynary institution," empowered to receive property "for objects unconnected with government," and "whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves," the case becomes more difficult.[744] Marshall then sets out compactly and clearly the facts relating to the establishment of Wheelock's school; the granting and acceptance of the charter; the nature of the College funds which "consisted entirely of private donations." These facts unquestionably show, he avows, that Dartmouth College is "an eleemosynary, and, as far as respects its funds, a private corporation."[745] Does the fact that the purpose of the College is the education of youth make it a public corporation? It is true that the Government may found and control an institution of learning. "But is Dartmouth College such an institution? Is education altogether in the hands of government?" Are all teachers public officers? Do gifts for the advancement of learning "necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of donation?"[746] Certainly Eleazar Wheelock, teaching and supporting Indians "at his own expense, and on the voluntary contributions of the charitable," was not a public officer. The Legislature could not control his money and that given by others, merely because Wheelock was using it in an educational charity. Whence, then, comes "the idea that Dartmouth College has become a public institution?... Not from the source" or application of its funds. "Is it from the act of incorporation?"[747] Such is the process by which Marshall reaches his famous definition of the word "corporation": "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.... It possesses only those properties which the charter of its creation confers upon it.... Among the most important are immortality, and ... individuality.... By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.... But ... it is no more a state instrument than a natural person exercising the same powers would be."[748] This, says Marshall, is obviously true of all private corporations. "The objects for which a corporation is created are universally such as the government wishes to promote." Why should a private charity, incorporated for the purpose of education, be excluded from the rules that apply to other corporations? An individual who volunteers to teach is not a public officer because of his personal devotion to education; how, then, is it that a corporation formed for precisely the same service "should become a part of the civil government of the country?" Because the Government has authorized the corporation "to take and to hold property in a particular form, and for particular purposes, has the Government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied?" Such an idea is without precedent. Can it be supported by reason?[749] Any corporation for any purpose is created only because it is "deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration for the grant." This is as true of incorporated charities as of any other form of incorporation. Of consequence, the Government cannot, subsequently, assume a power over such a corporation which is "in direct contradiction to its [the corporate charter's] express stipulations." So the mere fact "that a charter of incorporation has been granted" does not justify a Legislature in changing "the character of the institution," or in transferring "to the Government any new power over it." "The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions, and, of course, be controllable by the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporating act change the character of a private eleemosynary institution."[750] For whose benefit was the property of Dartmouth College given to that institution? For the people at large, as counsel insist? Read the charter. Does it give the State "any exclusive right to the property of the college, any exclusive interest in the labors of the professors?" Does it not rather "merely indicate a willingness that New Hampshire should enjoy those advantages which result to all from the establishment of a seminary of learning in the neighborhood? On this point we think it impossible to entertain a serious doubt." For the charter shows that, while the spread of education and religion was the object of the founders of the College, the "particular interests" of the State "never entered into the minds of the donors, never constituted a motive for their donation."[751] It is plain, therefore, that every element of the problem shows "that Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating ... the bounty of the donors, to the specified objects of that bounty"; that the Trustees are legally authorized to perpetuate themselves and that they are "not public officers"; that, in fine, Dartmouth College is a "seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation."[752] There remains a question most doubtful of "all that have been discussed." Neither those who have given money or land to the College, nor students who have profited by those benefactions, "complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected." Can the charter "be such a contract as the constitution intended to withdraw from the power of state legislation?"[753] Wheelock and the other philanthropists who had endowed the College, both before and after the charter was granted, made their gifts "for something ... of inestimable value--... the perpetual application of the fund to its object, in the mode prescribed by themselves.... The corporation ... stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal." Also the rights of the students "collectively" are "to be exercised ... by the corporation."[754] The British Parliament is omnipotent. Yet had it annulled the charter, even immediately after it had been granted and conveyances made to the corporation upon the faith of that charter, "so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged." Nevertheless, Parliament would have had the power to perpetrate such an outrage. "Then, as now, the donors would have had no interest in the property; ... the students ... no rights to be violated; ... the trustees ... no private, individual, beneficial interest in the property confided to their protection." But, despite the legal power of Parliament to destroy it, "the contract would at that time have been deemed sacred by all." "What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769." The donors and Trustees, on the one hand, and the Crown on the other, were the original parties to the arrangement stated in the charter, which was "plainly a contract" between those parties. To the "rights and obligations" of the Crown under that contract, "New Hampshire succeeds."[755] Can such a contract be impaired by a State Legislature? "It is a contract made on a valuable consideration. "It is a contract for the security and disposition of property. "It is a contract, on the faith of which real and personal estate has been conveyed to the corporation. "It is then a contract within the letter of the constitution, and within its spirit also, unless" the nature of the trust creates "a particular exception, taking this case out of the prohibition contained in the constitution." It is doubtless true that the "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 that instrument," and that legislative interferences with contractual obligations "of more frequent recurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the state legislatures. "But although a particular and a rare case may not ... induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language [of the contract clause] would have been so varied as to exclude it, or it would have been made a special exception."[756] Can the courts now make such an exception? "On what safe and intelligible ground can this exception stand?" Nothing in the language of the Constitution; no "sentiment delivered by its contemporaneous expounders ... justify us in making it." Does "the nature and reason of the case itself ... sustain a construction of the constitution, not warranted by its words?" The contract clause was made a part of the Nation's fundamental law "to give stability to contracts." That clause in its "plain import" comprehends Dartmouth's charter. Does public policy demand a construction which will exclude it? The fate of all similar corporations is involved. "The law of this case is the law of all."[757] Is it so necessary that Legislatures shall "new-model" such charters "that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration?" The importance attached by the American people to corporate charters like that of Dartmouth College is proved by "the interest which this case has excited." If the framers of the Constitution respected science and literature so highly as to give the National Government exclusive power to protect inventors and writers by patents and copyrights, were those statesman "so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man?"[758] No man ever did or will found a college, "believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. All such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it." Since every man finds evidence of this truth "in his own bosom," can it be imagined that "the framers of our constitution were strangers" to the same universal sentiment? Although "feeling the necessity ... of giving permanence and security to contracts," because of the "fluctuating" course and "repeated interferences" of Legislatures which resulted in the "most perplexing and injurious embarrassments," did the framers of the Constitution nevertheless deem it "necessary to leave these contracts subject to those interferences?" Strong, indeed, must be the motives for making such exceptions.[759] Finally, Marshall declares that the "opinion of the court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States."[760] Do the New Hampshire College Acts impair the obligations of Dartmouth's charter? That instrument gave the Trustees "the whole power of governing the college"; stipulated that the corporation "should continue forever"; and "that the number of trustees should forever consist of twelve, and no more." This contract was made by the Crown, a power which could have made "no violent alteration in its essential terms, without impairing its obligation." The powers and duties of the Crown were, by the Revolution, "devolved on the people of New Hampshire." It follows that, since the Crown could not change the charter of Dartmouth without impairing the contract, neither can New Hampshire. "All contracts, and rights, respecting property, remained unchanged by the revolution."[761] As to whether the New Hampshire College Acts radically alter the charter of Dartmouth College, "two opinions cannot be entertained." The State takes over the government of the institution. "The will of the state is substituted for the will of the donors, in every essential operation of the college.... The charter of 1769 exists no longer"--the College has been converted into "a machine entirely subservient to the will of government," instead of the "will of its founders."[762] Therefore, the New Hampshire College laws "are repugnant to the constitution of the United States."[763] On account of the death of Woodward, who had been Secretary and Treasurer of the University, and formerly held the same offices in the College against whom the College Trustees had brought suit, Webster moved for judgment _nunc pro tunc_; and judgment was immediately entered accordingly. Not for an instant could Webster restrain the expression of his joy. Before leaving the court-room he wrote his brother: "All is safe.... The opinion was delivered by the Chief Justice. It was very able and very elaborate; it goes the whole length, and leaves not an inch of ground for the University to stand on."[764] He informed President Brown that "all is safe and certain.... I feel a load removed from my shoulders much heavier than they have been accustomed to bear."[765] To Mason, Webster describes Marshall's manner: "The Chief Justice's opinion was in his own peculiar way. He reasoned along from step to step; and, not referring to the cases [cited], adopted the principles of them, and worked the whole into a close, connected, and very able argument."[766] At the same time Hopkinson wrote Brown in a vein equally exuberant: "Our triumph ... has been complete. Five judges, only six attending, concur not only in a decision in our favor, but in placing it upon principles broad and deep, and which secure corporations of this description from legislative despotism and party violence for the future.... I would have an inscription over the door of your building, 'Founded by Eleazar Wheelock, Refounded by Daniel Webster.'"[767] The high-tempered Pinkney was vocally indignant. "He talked ... and blustered" ungenerously, wrote Webster, "because ... the party was in a fever and he must do something for his fees. As he could not talk _in_ court, he therefore talked _out_ of court."[768] As we have seen, Marshall had prepared his opinion under his trees at Richmond and in the mountains during the vacation of 1818; and he had barely time to read it to his associates before the opening of court at the session when it was delivered. But he afterward submitted the manuscript to Story, who made certain changes, although enthusiastically praising it. "I am much obliged," writes Marshall, "by the alterations you have made in the Dartmouth College case & am highly gratified by what you say respecting it."[769] Story also delivered an opinion upholding the charter[770]--one of his ablest papers. It fairly bristles with citations of precedents and historical examples. The whole philosophy of corporations is expounded with clearness, power, and learning. Apparently Justice Livingston liked Story's opinion even more than that of Marshall. Story had sent it to Livingston, who, when returning the manuscript, wrote: It "has afforded me more pleasure than can easily be expressed. It was exactly what I had expected from you, and hope it will be adopted without alteration."[771] At the time of the Dartmouth decision little attention was paid to it outside of New Hampshire and Massachusetts.[772] The people, and even the bar, were too much occupied with bank troubles, insolvency, and the swiftly approaching slavery question, to bother about a small New Hampshire college. The profound effect of Marshall's opinion was first noted in the _North American Review_ a year after the Chief Justice delivered it. "Perhaps no judicial proceedings in this country ever involved more important consequences, ... than the case of Dartmouth College."[773] Important, indeed, were the "consequences" of the Dartmouth decision. Everywhere corporations were springing up in response to the necessity for larger and more constant business units and because of the convenience and profit of such organizations. Marshall's opinion was a tremendous stimulant to this natural economic tendency. It reassured investors in corporate securities and gave confidence and steadiness to the business world. It is undeniable and undenied that America could not have been developed so rapidly and solidly without the power which the law as announced by Marshall gave to industrial organization. One result of his opinion was, for the period, of even higher value than the encouragement it gave to private enterprise and the steadiness it brought to business generally; it aligned on the side of Nationalism all powerful economic forces operating through corporate organization. A generation passed before railway development began in America; but Marshall lived to see the first stage of the evolution of that mighty element in American commercial, industrial, and social life; and all of that force, except the part of it which was directly connected with and under the immediate influence of the slave power, was aggressively and most effectively Nationalist. That this came to be the fact was due to Marshall's Dartmouth opinion more than to any other single cause. The same was true of other industrial corporate organizations. John Fiske does not greatly exaggerate in his assertion that the law as to corporate franchises declared by Marshall, in subjecting to the National Constitution every charter granted by a State "went farther, perhaps, than any other in our history toward limiting State sovereignty and extending the Federal jurisdiction."[774] Sir Henry Sumner Maine has some ground for his rather dogmatic statement that the principle of Marshall's opinion "is the basis of credit of many of the great American Railway Incorporations," and "has ... secured full play to the economical forces by which the achievement of cultivating the soil of the North American Continent has been performed." Marshall's statesmanship is, asserts Maine, "the bulwark of American individualism against democratic impatience and Socialistic fantasy."[775] Such views of the Dartmouth decision are remarkably similar to those which Story himself expressed soon after it was rendered. Writing to Chancellor Kent Story says: "Unless I am very much mistaken the principles on which that decision rests will be found to apply with an extensive reach to all the great concerns of the people, and will check any undue encroachments upon civil rights, which the passions or the popular doctrines of the day may stimulate our State Legislatures to adopt."[776] The court's decision, however, made corporate franchises infinitely more valuable and strengthened the motives for procuring them, even by corruption. In this wise tremendous frauds have been perpetrated upon negligent, careless, and indifferent publics; and "enormous and threatening powers," selfish and non-public in their purposes and methods, have been created.[777] But Marshall's opinion put the public on its guard. Almost immediately the States enacted laws reserving to the Legislature the right to alter or repeal corporate charters; and the constitutions of several States now include this limitation on corporate franchises. Yet these reservations did not, as a practical matter, nullify or overthrow Marshall's philosophy of the sacredness of contracts. Within the last half-century the tendency has been strongly away from the doctrine of the Dartmouth decision, and this tendency has steadily become more powerful. The necessity of modifying and even abrogating legislative grants, more freely than is secured by the reservation to do so contained in State constitutions and corporate charters, has further restricted the Dartmouth decision. It is this necessity that has produced the rapid development of "that well-known but undefined power called the police power,"[778] under which laws may be passed and executed, in disregard of what Marshall would have called contracts, provided such laws are necessary for the protection or preservation of life, health, property, morals, or order. The modern doctrine is that "the Legislature cannot, by any contract, divest itself of the power to provide for these objects.... They are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself."[779] Aside from the stability which this pronouncement of the Chief Justice gave to commercial transactions in general, and the confidence it inspired throughout the business world, the largest permanent benefit of it to the American people was to teach them that faith once plighted, whether in private contracts or public grants, must not and cannot be broken by State legislation; that, by the fundamental law which they themselves established for their own government, they as political entities are forbidden to break their contracts by enacting statutes, just as, by the very spirit of the law, private persons are forbidden to break their contracts. If it be said that their representatives may betray the people, the plain answer is that the people must learn to elect honest agents. For exactly a century Marshall's Dartmouth opinion has been assailed and the Supreme Court itself has often found ways to avoid its conclusions. But the theory of the Chief Justice has shown amazing vitality. Sixty years after Marshall delivered it, Chief Justice Waite declared that the principles it announced are so "imbedded in the jurisprudence of the United States as to make them to all intents and purposes a part of the Constitution itself."[780] Thirty-one years after Marshall died, Justice Davis avowed that "a departure from it [Marshall's doctrine] _now_ would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the Government."[781] As late as 1895, Justice Brown asserted that it has "become firmly established as a canon of American jurisprudence."[782] It was a principle which Marshall introduced into American Constitutional law, and, fortunately for the country, that principle still stands; but to-day the courts, when construing a law said to impair the obligation of contracts, most properly require that it be established that the unmistakable purpose of the Legislature is to make an actual contract for a sufficient consideration.[783] It is highly probable that in the present state of the country's development, the Supreme Court would not decide that the contract clause so broadly protects corporate franchises as Marshall held a century ago. In considering the Dartmouth decision, however, the state of things existing when it was rendered must be taken into account. It is certain that Marshall was right in his interpretation of corporation law as it existed in 1819; right in the practical result of his opinion in that particular case; and, above all, right in the purpose and effect of that opinion on the condition and tendency of the country at the perilous time it was delivered. FOOTNOTES: [615] See vol. I, 147, 231, of this work. [616] See vol. III, chap. X, of this work. [617] 7 Cranch, 164. [618] _Ib._ 165. [619] 7 Cranch, 166-67. [620] This was true also of the entire court, since all the Justices concurred in Marshall's opinions in both cases as far as the legislative violations of the contract clause were concerned. [621] He was not at all related to the Chief Justice. See vol. I, footnote to 15-16, of this work. [622] Chase: _History of Dartmouth College and the Town of Hanover, New Hampshire_, I, 49. [623] Chase, 45-48. [624] _Ib._ 59. [625] _Ib._ 54-55. [626] Dartmouth and the English Trustees opposed incorporation and the Bishops of the Church of England violently resisted Wheelock's whole project. (_Ib._ 90.) [627] Farrar: _Report of the Case of the Trustees of Dartmouth College against William H. Woodward_, 11, 16; also see Charter of Dartmouth College, Chase, 639-49. (Although the official copy of the charter appears in Chase's history, the author cites Farrar in the report of the case; the charter also is cited from his book.) [628] Chase, 556. [629] See Wheelock's will, _ib._ 562. [630] Young Wheelock was very active in the Revolution. He was a member of the New Hampshire Assembly in 1775, a Captain in the army in 1776, a Major the following year, and then Lieutenant-Colonel, serving on the staff of General Horatio Gates until called from military service by the death of his father in 1779. (See Smith: _History of Dartmouth College_, 76.) [631] Chase, 564. [632] Rachel Murch "To y^e Session of y^e Church of Christ in Hanover," April 26, 1783, Shirley: _Dartmouth College Causes and the Supreme Court of the Untied States_, 67. [633] Shirley, 66-70. [634] _Ib._ 70-75. Only three of the scores of Congregationalist ministers in New Hampshire were Republicans. (_Ib._ 70.) [635] _Ib._ 82. [636] Shirley, 81, 84-85. [637] _Sketches of the History of Dartmouth College and Moors' Charity School._ [638] _A Candid, Analytical Review of the Sketches of the History of Dartmouth College._ [639] _Vindication of the Official Conduct of the Trustees_, etc., and _A True and Concise Narrative of the Origin and Progress of the Church Difficulties_, by Benoni Dewey, James Wheelock, and Benjamin J. Gilbert. [640] _Answer to the "Vindication_," etc., by Josiah Dunham. [641] Lord: _History of Dartmouth College_, 73-77. [642] Lord, 78. [643] In 1811 the salary of Chief Justices of the Court of Common Pleas for four of the counties was fixed at $200 a year; and that of the other Justices of those courts at $180. "The Chief Justice of said court in Grafton County, $180, and the other Justices in that court $160." (Act of June 21, _Laws of New Hampshire, 1811_, 33.) [644] Acts of June 24 and Nov. 5, _Laws of New Hampshire, 1813_, 6-19; Barstow: _History of New Hampshire_, 363-64; Morison: _Life of Jeremiah Smith_, 265-67. This law was, however, most excellent. It established a Supreme Court and systematized the entire judicial system. [645] This was the second time Plumer had been elected Governor. He was first chosen to that office in 1812. Plumer had abandoned the failing and unpatriotic cause of Federalism in 1808 (Plumer, 365), and had since become an ardent follower of Jefferson. [646] The number of votes cast at this election was the largest ever polled in the history of the State up to that time. (_Ib._ 432.) [647] See Act of June 27, _Laws of New Hampshire, 1816_, 45-48. This repealed the Federalist Judiciary Acts of 1813 and revived laws repealed by those acts. (See Barstow, 383, and Plumer, 437-38.) The burning question of equality of religious taxation was not taken up by this Legislature. The bill was introduced in the State Senate by the Reverend Daniel Young, a Methodist preacher, but it received only three votes. Apparently the reform energy of the Republicans was, for that session, exhausted by the Judiciary and College Acts. The "Toleration Act" was not passed until three years later. (McClintock: _History of New Hampshire_, 507-29; also Barstow, 422.) This law is omitted from the published acts, although it is indexed. [648] In his Message to the Legislature recommending reform laws for Dartmouth College, Governor Plumer denounced the provision of the charter relating to the Trustees as "hostile to the spirit and genius of a free government." (Barstow, 396.) This message Plumer sent to Jefferson, who replied that the idea "that institutions, established for the use of the nation, cannot be touched nor modified, even to make them answer their end ... is most absurd.... Yet our lawyers and priests generally inculcate this doctrine; and suppose that preceding generations ... had a right to impose laws on us, unalterable by ourselves; ... in fine, that the earth belongs to the dead, and not to the living." (Jefferson to Plumer, July 21, 1816, Plumer, 440-41.) [649] Act of June 27, _Laws of New Hampshire_, 1816, 48-51; and see Lord, 687-90. The temper of the Republicans is illustrated by a joint resolution adopted June 29, 1816, denouncing the increase of salaries of Senators and Representatives in Congress, which "presents the most inviting inducements to avarice and ambition," "will introduce a monopolizing power," and "contaminate our elections." (Act of June 27, _Laws of New Hampshire_, 1816, 65-66.) [650] _Journal_, House of Representatives (N.H.), June 28, 1816, 238-41. [651] Resolutions of the Trustees, Lord, 690-94. [652] Lord, 96. [653] "It is an important question and merits your serious consideration whether a law passed and approved by all the constituted authorities of the State shall be carried into effect, or whether _a few individuals_ not vested with _any judicial authority_ shall be permitted to declare your statutes _dangerous and arbitrary, unconstitutional and void_: whether a _minority_ of the trustees of a literary institution formed for the education of your children shall be encouraged to inculcate the doctrine of resistance to the law and their example tolerated in disseminating principles of insubordination and rebellion against government." (Plumer's Message, Nov. 20, 1816, Lord, 103.) [654] Acts of Dec. 18 and 26, 1816, (_Laws of New Hampshire, 1816_, 74-75; see also Lord, 104.) [655] Lord, 111-12. [656] _Ib._ 112-15. [657] _Ib._ 115. [658] Lord, 121. So few students went with the University that it dared not publish a catalogue. (_Ib._ 129.) [659] _Ib._ 92. [660] One of the many stories that sprang up in after years about Webster's management of the case is that, since the College was founded for the education of Indians and none of them had attended for a long time, Webster advised President Brown to procure two or three. Brown got a number from Canada and brought them to the river beyond which were the College buildings. While the party were rowing across, the young Indians, seeing the walls and fearing that they were to be put in prison, gave war whoops, sprang into the stream, swam to shore and fled. So Webster had to go on without them. (Harvey: _Reminiscences and Anecdotes of Daniel Webster_, 111-12.) There is not the slightest evidence to support this absurd tale. (Letters to the author from Eugene F. Clark, Secretary of Dartmouth College, and from Professor John K. Lord, author of _History of Dartmouth College_.) [661] Lord, 99. [662] Farrar, 1. [663] These arguments are well worth perusal. (See Farrar, 28-206; also 65 N.H. Reports, 473-624.) [664] For instance, Mason's argument, which is very compact, consists of forty-two pages of which only four are devoted to "the contract clause" of the National Constitution and the violation of it by the New Hampshire College Act. (Farrar, 28-70; 65 N.H. 473-502.) [665] Farrar, 212-13; 65 N.H. 628-29. [666] Farrar, 214-15; 65 N.H. 630. [667] The contract clause. [668] Farrar, 216; 65 N.H. 631. [669] Farrar, 228-29; 65 N.H. 639. [670] Farrar, 231; 65 N.H. 641. [671] Farrar, 232; 65 N.H. 642. [672] Farrar, 235. [673] _Ib._ [674] Webster was then thirty-six years of age. [675] Goodrich's statement in Brown: _Works of Rufus Choate: With a Memoir of his Life_, I, 515. [676] They were Rufus Greene Amory and George Black of Boston, David B. Ogden and "a Mr. Baldwin from New York," Thomas Sergeant and Charles J. Ingersoll of Philadelphia, John Wickham, Philip Norborne, Nicholas and Benjamin Watkins Leigh of Virginia, and John McPherson Berrien of Georgia. (Webster to Sullivan, Feb. 27, 1818, _Priv. Corres_.: Webster, I, 273.) [677] Brown, I, 515. Story makes no comment on the argument of the Dartmouth case--a pretty sure sign that it attracted little attention in Washington. Contrast Story's silence as to this argument with his vivid description of that of M'Culloch _vs._ Maryland (_infra_, chap. VI). Goodrich attributes the scant attendance to the fact that the court sat "in a mean apartment of moderate size"; but that circumstance did not keep women as well as men from thronging the room when a notable case was to be heard or a celebrated lawyer was to speak. (See description of the argument of the case of the Nereid, _supra_, 133-34.) [678] For example, in M'Culloch _vs._ Maryland, Luther Martin spoke for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and see _infra_, chap, VI.) [679] See vol. III, chap, IV, of this work. [680] The College Trustees at first thought of employing Luther Martin to assist Webster in the Supreme Court (Brown to Kirkland, Nov. 15, 1817, as quoted by Warren in _American Law Review_, XLVI, 665). It is possible that Hopkinson was chosen instead, upon the advice of Webster, who kept himself well informed of the estimate placed by Marshall and the Associate Justices on lawyers who appeared before them. Marshall liked and admired Hopkinson, had been his personal friend for years, and often wrote him. When Peters died in 1828, Marshall secured the appointment of Hopkinson in his place. (Marshall to Hopkinson, March 16, 1827, and same to same [no date, but during 1828], Hopkinson MSS.) [681] It was considered to be a "needless expense" to send the original counsel, Sullivan and Bartlett, to Washington. (Lord, 140.) [682] Webster to McGaw, July 27, 1818, Van Tyne, 77. [683] Shirley, 229-32. The fact that Holmes was employed plainly shows the influence of "practical politics" on the State officials and the Trustees of the University. The Board voted December 31, 1817, "to take charge of the case." Benjamin Hale, one of the new Trustees, was commissioned to secure other counsel if Holmes did not accept. Apparently Woodward was Holmes's champion: "I have thought him extremely ready ... [a] good lawyer, inferior to D. W. only in point of oratory." (Woodward to Hall, Jan. 18, 1818, Lord, 139-40.) Hardly had Hale reached Washington than he wrote Woodward: "Were you sensible of the low ebb of Mr. Holmes' reputation here, you would ... be unwilling to trust the cause with him." (Hale to Woodward, Feb. 15, 1818, _ib._ 139.) [684] "It is late at night--the fag-end of a hard day's work. My eyes, hand and mind all tired.... I have been up till midnight, at work, every night, and still have my hands full.... I am now worn out ... extremely fatigued.... The Supreme Court is approaching. It will half kill you to hear that it will find me unprepared." (Wirt to Carr, Jan. 21, 1818, Kennedy, II, 73-74.) Wirt had just become Attorney-General. Apparently he found the office in very bad condition. The task of putting it in order burdened him. He was compelled to do much that was not "properly [his] duty." (_Ib._ 73.) His fee in the Dartmouth College case did not exceed $500. (Hale to Plumer, Jan. 1818, Lord, 140.) [685] "He seemed to treat this case as if his side could furnish nothing but declamation." (Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275.) [686] Farrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, I, 163-66. [687] Farrar, 242-44; 65 N.H. 597-98; 4 Wheaton, 556-57. [688] Farrar, 244; 65 N.H. 598-99; 4 Wheaton, 558-59. [689] Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64. [690] Farrar, 255-56; 65 N.H. 605-06; 4 Wheaton, 567-68. [691] Farrar, 258-59; 65 N.H. 607-08; 4 Wheaton, 571-72. [692] Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571. [693] In Terrett _vs._ Taylor, 9 Cranch, 45 _et seq._ Story delivered the unanimous opinion of the Supreme Court in this case. This fact was well known at the time of the passage of the College Acts; and, in view of it, there is difficulty in understanding how Story could have been expected to support the New Hampshire legislation. (See _infra_, 257.) [694] Farrar, 262; 65 N.H. 609-10; 4 Wheaton, 574-75. [695] Farrar, 273; 65 N.H. 617; 4 Wheaton, 588. [696] Farrar, 246-47; 65 N.H. 598-600; 4 Wheaton, 557-59. [697] See vol. III, chap, X, of this work. [698] Farrar, 273-74; 65 N.H. 618-19; 4 Wheaton, 591-92. [699] _Supra_, 223. [700] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. [701] In Terrett _vs._ Taylor, see _supra_, footnote to 243. [702] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.) It will be observed that Webster puts the emphasis upon "natural justice" and "fundamental laws" rather than upon the Constitutional point. [703] Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592. [704] Terrett _vs._ Taylor. [705] Farrar, 277; 65 N.H. 620; 4 Wheaton, 592. [706] Farrar, 280; 65 N.H. 622. The two paragraphs containing these statements of Webster are omitted in _Wheaton's Reports_. [707] Farrar, 282-83; 65 N.H. 624; 4 Wheaton, 599. [708] Brown, I, 516. [709] _Ib._ 516-17. This scene, the movement and color of which grew in dignity and vividness through the innumerable repetitions of it, caught the popular fancy. Speeches, poems, articles, were written about the incident. It became one of the chief sources from which the idolaters of Webster drew endless adulation of that great man. [710] See Brown, I, 517; Curtis, I, 169-71. Chauncey Allen Goodrich was in his twenty-eighth year when he heard Webster's argument. He was sixty-three when he gave Choate the description which the latter made famous in his "Eulogy of Webster." [711] Compare their arguments with Webster's. See Farrar 28-70; 104-61; 238-84. [712] "Your notes I found to contain the whole matter. They saved me great labor; but that was not the best part of their service; they put me in the right path.... The only new aspect of the argument was produced by going into cases to prove these ideas, which indeed lie at the very bottom of your argument." (Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I, 276-77; and see Webster to Mason, March 22, 1818, _ib._ 278.) A year later, after the case had been decided, when the question of publishing Farrar's _Report_ of all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted by _preventing_ the Book. I shall strut well enough in the Washington Report, & if the 'Book' should not be published, the world would not know where I borrowed my plumes--But I am still inclined to have the Book--One reason is, that you & Judge Smith may have the credit which belongs to you." (Webster to Mason, April 10, 1819, Van Tyne, 80.) Farrar's _Report_ was published in August, 1819. It contains the pleadings and special verdict, the arguments of counsel, opinions, and the judgments in the State and National courts, together with valuable appendices. The Farrar _Report_ is indispensable to those who wish to understand this celebrated case from the purely legal point of view. [713] Story to Mason, Oct. 6, 1819, Story, I, 323. [714] Webster to Mason, April 28, 1818, _Priv. Corres._: Webster, I, 282-83. (Italics the author's.) In fact three such suits were brought early in 1818 on the ground of diverse citizenship. (Shirley, 2-3.) Any one of them would have enabled the Supreme Court to have passed on the "general principles" of contract and government. These cases, had they arrived on time, would have afforded Story his almost frantically desired opportunity to declare that legislation violative of contracts was against "natural right"--an opinion he fervently desired to give. But the wiser Marshall saw in the case, as presented to the Supreme Court on the contract guarantee of the Constitution, the occasion to declare, in effect, that these same fundamental principles are embraced in the contract clause of the written Constitution of the American Nation. [715] Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275. "Every body was grinning at the folly he uttered. Bell could not stand it. He seized his hat and went off." (Webster to Smith, March 14, 1818, _ib._ 277; and see Webster to Brown, March 11, 1818, Van Tyne, 75-76.) Holmes "has attempted as a politician ... such a desire to be admired by _everybody_, that he has ceased for weeks to be regarded by _anybody_.... In the Dartmouth College Cause, he sunk lower at the bar than he had in the Hall of Legislature." (Daggett to Mason, March 18, 1818, Hillard: _Memoir and Correspondence of Jeremiah Mason_, 199.) The contempt of the legal profession for Holmes is shown by the fact that in Farrar's _Report_ but four and one half pages are given to his argument, while those of all other counsel for Woodward (Sullivan and Bartlett in the State court and Wirt in the Supreme Court) are published in full. [716] "He made an apology for himself, that he had not had time to study the case, and had hardly thought of it, till it was called on." (Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275-76.) [717] "Before he concluded he became so exhausted ... that he was obliged to request the Court to indulge him until the next day." (_Boston Daily Advertiser_, March 23, 1818.) "Wirt ... argues a good cause well. In this case he said more nonsensical things than became him." (Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I, 277.) [718] Hopkinson wrote this anthem when Marshall returned from France. (See vol. II, 343, of this work.) [719] This description of Hopkinson is from Philadelphia according to traditions gathered by the author. [720] Choate says that Webster called to his aid "the ripe and beautiful culture of Hopkinson." (Brown, I, 514.) [721] The same was true of Hopkinson's argument for Chase. (See vol. III, chap. IV, of this work.) [722] Webster to Brown, March 11, 1818, Van Tyne, 75-76. After Hopkinson's argument Webster wrote Brown: "Mr. Hopkinson understood every part of the cause, and in his argument did it great justice." (Webster to Brown, March 13, 1818, _Priv. Corres._: Webster, I, 274; and see Webster to Mason, March 13, 1818, _ib._ 275-76.) "Mr. Hopkinson closed the cause for the College with great ability, and in a manner which gave perfect satisfaction and delight to all who heard him." (_Boston Daily Advertiser_, March 23, 1818.) It was expected that the combined fees of Webster and Hopkinson would be $1000, "not an unreasonable compensation." (Marsh to Brown, Nov. 22, 1817, Lord, 139.) Hopkinson was paid $500. (Brown to Hopkinson, May 4, 1819, Hopkinson MSS.) At their first meeting after the decision, the Trustees, "feeling the inadequacy" of the fees of all the lawyers for the College, asked Mason, Smith, Webster, and Hopkinson to sit for their portraits by Gilbert Stuart, the artist to be paid by the Trustees. (Shattuck to Hopkinson, Jan. 4, 1835, enclosing resolution of the Trustees, April 4, 1819, attested by Miles Olcott, secretary, Hopkinson MSS.; also, Webster to Hopkinson, May 9, 1819, _ib._) [723] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I, 577. [724] Many supposed that Story was undecided, perhaps opposed to the College. In fact, he was as decided as Marshall. (See _infra_, 257-58, 275 and footnote.) [725] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I, 577. [726] For example, William Wirt, Monroe's Attorney-General, in urging the appointment of Kent, partisan Federalist though he was, to the Supreme Bench to succeed Justice Livingston, who died March 19, 1823, wrote that "Kent holds so lofty a stand everywhere for almost matchless intellect and learning, as well as for spotless purity and high-minded honor and patriotism, that I firmly believe the nation at large would approve and applaud the appointment." (Wirt to Monroe, May 5, 1823, Kennedy, II, 153.) [727] Kent to Marsh, Aug. 26, 1818, Shirley, 263. Moreover, in 1804, Kent, as a member of the New York Council of Revision, had held that "charters of incorporation containing grants of personal and municipal privileges were not to be essentially affected without the consent of the parties concerned." (Record of Board, as quoted in _ib._ 254.) [728] Shirley, 253. Shirley says that Kent "agreed to draw up an opinion for Johnson in this case." [729] Webster to Story, Sept. 9, 1818, _Priv. Corres._: Webster, I, 287. [730] Lord, 143. [731] "The folks in this region are frightened.... It is ascertained that Judge Story ... is the original framer of the law.... They suppose that on this account the cause is hopeless before the Sup. Ct. of U.S. This is, however, report." (Murdock to Brown, Dec. 27, 1817, _ib._ 142.) Murdock mentions Pickering as one of those who believed the rumors about Story. This explains much. The soured old Federalist was an incessant gossip and an indefatigable purveyor of rumors concerning any one he did not like, provided the reports were bad enough for him to repeat. He himself would, with great facility, apply the black, if the canvas were capable of receiving it; and he could not forget that Story, when a young man, had been a Republican. [732] Hopkinson to Marsh, Dec. 31, 1817, Shirley, 274-75. [733] This is principally the work of John M. Shirley in his book _Dartmouth College Causes and the Supreme Court of the United States_. The volume is crammed with the results of extensive research, strange conglomeration of facts, suppositions, inferences, and insinuations, so inextricably mingled that it is with the utmost difficulty that the painstaking student can find his way. Shirley leaves the impression that Justices Johnson and Livingston were improperly worked upon because they consulted Chancellor Kent. Yet the only ground for this is that Judge Marsh sent Webster's argument to Kent, who was Marsh's intimate friend; and that the Reverend Francis Brown, President of Dartmouth, went to see Kent, reported that his opinion was favorable to the College, and that the effect of this would be good upon Johnson and Livingston. From the mere rumor, wholly without justification, that Story was at first against the College--indeed, had drawn the College Acts (for so the rumor grew, as rumors always grow)--Shirley would have us believe, without any evidence whatever, that some improper influence was exerted over Story. Because Webster said that there was something "left out" of the report of his argument, Shirley declares that for a whole hour Webster spoke as a Federalist partisan in order to influence Marshall. (Shirley, 237.) But such an attempt would have been resented by every Republican member of the court and, most of all, by Marshall himself. Moreover, Marshall needed no such persuasion, nor, indeed, persuasion of any kind. His former opinions showed where he stood; so did the views which he had openly and constantly avowed since he was a member of the Virginia House of Burgesses in 1783. The something "left out" of Webster's reported argument was, of course, his extemporaneous and emotional peroration described by Goodrich. These are only a very few instances of Shirley's assumptions. Yet, because of the mass of data his book contains, and because of the impossibility of getting out of them a connected narrative without the most laborious and time-consuming examination, together with the atmosphere of wrongdoing with which Shirley manages to surround the harried reader, his volume has had a strong and erroneous effect upon general opinion. [734] Hopkinson to Webster, Nov. 17, 1818, _Priv. Corres._: Webster, I, 288-89. "I suppose he expects to do something very extraordinary in it, as he says Mr. Wirt 'was not strong enough for it, has not back enough.'" (_Ib._ 289.) [735] Both Hopkinson and Webster resolved to prevent Pinkney from making his anticipated argument. (_Ib._) [736] Not only did Pinkney master the law of the case, but, in order to have at his command every practical detail of the controversy, he kept Cyrus Perkins, who succeeded Woodward, deceased, as Secretary of the University Trustees, under continuous examination for an entire week. Perkins knew every possible fact about the College controversy and submitted to Pinkney the whole history of the dispute and also all documents that could illuminate the subject. "Dr. Perkins had been a week at Baltimore, conferring with Mr. Pinkney." (Webster to Mason, Feb. 4, 1819, Hillard, 213; and see Shirley, 203.) [737] This fact was unknown to anybody but the Justices themselves. "No public or general opinion seems to be formed of the opinion of any particular judge." (Webster to Brown, Jan. 10, 1819, _Priv. Corres._: Webster, I, 299.) [738] "On Tuesday morning, he [Pinkney] being in court, as soon as the judges had taken their seats, the Chief Justice said that in vacation the judges had formed opinions in the College case. He then immediately began reading his opinion, and, of course, nothing was said of a second argument." (Webster to Mason, Feb. 4, 1819, Hillard, 213.) [739] 4 Wheaton, 625. [740] _Ib._ 626-27. [741] 4 Wheaton, 627. [742] _Ib._ 627-28. [743] 4 Wheaton, 629-30. [744] _Ib._ 630. [745] _Ib._ 631-34. The statement of facts and of the questions growing out of them was by far the best work Marshall did. In these statements he is as brief, clear, and pointed as, in his arguments, he is prolix, diffuse, and repetitious. [746] _Ib._ 634. [747] 4 Wheaton, 635-36. [748] _Ib._ 636. [749] 4 Wheaton, 637. [750] 4 Wheaton, 638-39. [751] _Ib._ 639-40. [752] 4 Wheaton, 640-41. [753] _Ib._ 641. [754] _Ib._ 642-43. [755] 4 Wheaton, 643. [756] 4 Wheaton, 644. [757] 4 Wheaton. 645. [758] _Ib._ 646-47. [759] 4 Wheaton, 647-48. [760] _Ib._ 650. [761] _Ib._ 651. [762] 4 Wheaton, 652-53. [763] _Ib._ 654. [764] Webster "in court" to his brother, Feb. 2, 1819, _Priv. Corres._ Webster, I, 300. [765] Webster to Brown, Feb. 2, 1819, _ib._ [766] Webster to Mason, Feb. 4, 1819, Hillard, 213-14. Webster adds: "Some of the other judges, I am told, have drawn opinions with more reference to authorities." (_Ib._ 214.) [767] Hopkinson to Brown, Feb. 2, 1819, _Priv. Corres._: Webster, I, 301. [768] Webster to Mason, April 13, 1819, Hillard, 223. [769] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._ 2d Series, XIV, 324-25. [770] 4 Wheaton, 666-713. [771] Livingston to Story, Jan. 24, 1819, Story, I, 323. This important letter discredits the rumor that Story at first thought the College Acts valid. Story sent copies of his opinion to eminent men other than his associates on the Supreme Bench, among them William Prescott, father of the historian, a Boston lawyer highly esteemed by the leaders of the American bar. "I have read your opinion with care and great pleasure," writes Prescott. "In my judgment it is supported by the principles of our constitutions, and of all free governments, as well as by the authority of adjudged cases. As one of the public, I thank you for establishing a doctrine affecting so many valuable rights and interests, with such clearness and cogency of argument, and weight of authority as must in all probability prevent its ever being again disturbed, I see nothing I should wish altered in it. I hope it will be adopted without diminution or subtraction. You have placed the subject in some strong, and to me, new lights, although I had settled my opinion on the general question years ago." (Prescott to Story, Jan. 9, 1819, _ib._ 324.) [772] For instance, the watchful Niles does not even mention it in his all-seeing and all-recording _Register_. Also see Warren, 377. [773] _North American Review_ (1820), X, 83. [774] Fiske: _Essays, Historical and Literary_, I, 379. [775] Maine: _Popular Government_, 248. [776] Story to Kent, Aug. 21, 1819, Story, I, 331. [777] See Cooley: _Constitutional Limitations_ (6th ed.), footnote to 335. [778] Butchers' Union, etc. _vs._ Crescent City, etc. 111 U.S. 750. [779] Beer Company _vs._ Massachusetts, 97 U.S. 25; and see Fertilizing Co. _vs._ Hyde Park, _ib._ 659. [780] Stone _vs._ Mississippi, October, 1879, 11 Otto (101 U.S.) 816. [781] The Binghamton Bridge, December, 1865, 3 Wallace, 73. [782] Pearsall _vs._ Great Northern Railway, 161 U.S. 660. [783] More has been written of Marshall's opinion in this case than of any other delivered by him except that in Marbury _vs._ Madison. For recent discussions of the subject see Russell: "Status and Tendencies of the Dartmouth College Case," _Am. Law Rev._ XXX, 322-56, an able, scholarly, and moderate paper; Doe: "A New View of the Dartmouth College Case," _Harvard Law Review_, VI, 161-81, a novel and well-reasoned article; Trickett: "The Dartmouth College Paralogism," _North American Review_, XL, 175-87, a vigorous radical essay; Hall: "The Dartmouth College Case," _Green Bag_, XX, 244-47, a short but brilliant attack upon the assailants of Marshall's opinion; Jenkins: "Should the Dartmouth College Decision be Recalled," _Am. Law Rev._ LI, 711-51, a bright, informed, and thorough treatment from the extremely liberal point of view. A calm, balanced, and convincing review of the effect of the Dartmouth decision on American economic and social life is that of Professor Edward S. Corwin in his _Marshall and the Constitution_, 167-72. When reading these comments, however, the student should, at the same time, carefully reëxamine Marshall's opinion.