JOSEPH HOPKINSONJOSEPH 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 briefprécisof Hopkinson's admirable argument.[721]He quite justified Webster's assuranceto 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'sargument 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 beagainst 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 SupremeCourt. 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 ofthe 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 opinionof 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 factolaw, 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 statedthat 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 dowhat 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 toeducation; 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 itsproperty, 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 toperpetrate 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 theclause 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 whichwill 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 "feelingthe 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 judgmentnunc 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 ChiefJustice'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 talkincourt, he therefore talkedoutof 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 andMassachusetts.[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 theNorth American Reviewa 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 KentStory 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 hasproduced 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]nowwould 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.