FOOTNOTES:

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 yeSession of yeChurch 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., andA 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 whethera few individualsnot vested withany judicial authorityshall be permitted to declare your statutesdangerous and arbitrary, unconstitutional and void: whether aminorityof 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 ofHistory 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'Cullochvs.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'Cullochvs.Maryland, Luther Martin spoke for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and seeinfra, 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 inAmerican 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 Terrettvs.Taylor, 9 Cranch, 45et 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. (Seeinfra, 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 Terrettvs.Taylor, seesupra, 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]Terrettvs.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 inWheaton'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'sReportof all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted bypreventingthe 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'sReportwas 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 FarrarReportis 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 byeverybody, that he has ceased for weeks to be regarded byanybody.... 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'sReportbut 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. (Seeinfra, 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 inib.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 bookDartmouth 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-recordingRegister. 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 Companyvs.Massachusetts, 97 U.S. 25; and see Fertilizing Co.vs.Hyde Park,ib.659.[780]Stonevs.Mississippi, October, 1879, 11 Otto (101 U.S.) 816.[781]The Binghamton Bridge, December, 1865, 3 Wallace, 73.[782]Pearsallvs.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 Marburyvs.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 hisMarshall and the Constitution, 167-72. When reading these comments, however, the student should, at the same time, carefully reëxamine Marshall's opinion.

[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 yeSession of yeChurch 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., andA 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.

[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.)

[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 whethera few individualsnot vested withany judicial authorityshall be permitted to declare your statutesdangerous and arbitrary, unconstitutional and void: whether aminorityof 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 ofHistory 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'Cullochvs.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'Cullochvs.Maryland, Luther Martin spoke for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and seeinfra, 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 inAmerican 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 Terrettvs.Taylor, 9 Cranch, 45et 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. (Seeinfra, 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 Terrettvs.Taylor, seesupra, 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]Terrettvs.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 inWheaton'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."

[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'sReportof all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted bypreventingthe 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'sReportwas 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 FarrarReportis indispensable to those who wish to understand this celebrated case from the purely legal point of view.

A year later, after the case had been decided, when the question of publishing Farrar'sReportof all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted bypreventingthe 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'sReportwas 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 FarrarReportis 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 byeverybody, that he has ceased for weeks to be regarded byanybody.... 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'sReportbut 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.

[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 byeverybody, that he has ceased for weeks to be regarded byanybody.... 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'sReportbut 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.)

[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.)

[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. (Seeinfra, 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 inib.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.

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 bookDartmouth 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.

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.)

[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-recordingRegister. 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 Companyvs.Massachusetts, 97 U.S. 25; and see Fertilizing Co.vs.Hyde Park,ib.659.

[780]Stonevs.Mississippi, October, 1879, 11 Otto (101 U.S.) 816.

[781]The Binghamton Bridge, December, 1865, 3 Wallace, 73.

[782]Pearsallvs.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 Marburyvs.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 hisMarshall and the Constitution, 167-72. When reading these comments, however, the student should, at the same time, carefully reëxamine Marshall's opinion.

[783]More has been written of Marshall's opinion in this case than of any other delivered by him except that in Marburyvs.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 hisMarshall and the Constitution, 167-72. When reading these comments, however, the student should, at the same time, carefully reëxamine Marshall's opinion.

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