Chapter V: The Dartmouth College Case (2)

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.