Their mission was to raise funds for the prosecution of this educational

and missionary work on the American frontier. They succeeded in a manner

almost miraculous. Over eleven thousand pounds were soon raised,[624]

and this fund was placed under the control of the Trustees, at the head

of whom was the Earl of Dartmouth, one of the principal donors.[625]

From this circumstance the name of this nobleman was given to Wheelock's

institution.

On December 13, 1769, John Wentworth, Royal Governor of the Province of

New Hampshire, granted to Wheelock a charter for his school. It was, of

course, in the name of the sovereign, but it is improbable that George

III ever heard of it.[626] This charter sets forth the successful

efforts of Wheelock, "at his own expense, on his own estate," to

establish a charity school for Indian as well as white youth, in order

to spread "the knowledge of the great Redeemer among their savage

tribes"; the contributions to the cause; the trust, headed by

Dartmouth--and all the other facts concerning Wheelock's adventure.

Because of these facts the charter establishes "DARTMOUTH COLLEGE" for

the education of Indians, to be governed by "one body corporate and

politick, ... by the name of the TRUSTEES OF DARTMOUTH COLLEGE."

These Trustees are constituted "forever hereafter ... in deed, act, and

name a body corporate and politick," and are empowered to buy, receive,

and hold lands, "jurisdictions, and franchises, for themselves and their

successors, in fee simple, or otherwise howsoever." In short, the

Trustees are authorized to do anything and everything that they may

think proper. Wheelock is made President of the College, and given power

to "appoint, ... by his last will" whomever he chooses to succeed

himself as President of the College.

The charter grants to the Trustees and to "their successors forever," or

"the major part of any seven or more of them convened," the power to

remove and choose a President of the College, and to fill any vacancy in

the Board of Trustees occasioned by death, or "removal," or any other

cause. All this is to be done if seven Trustees, or a majority of seven,

are present at any meeting. Also this majority of seven of the twelve

Trustees, if no more attend a meeting, are authorized to make all laws,

rules, and regulations for the College. Other powers are granted, all of

which the Trustees and their successors are "to have and to hold ...

forever."[627] Under this charter, Dartmouth College was established

and, for nearly half a century, governed and managed.

Eleazar Wheelock died in 1779, when sixty-eight years of age.[628] By

his will he made his son John his successor as President of the

College.[629] This young man, then but twenty-five years of age, was a

Colonel of the Revolutionary Army.[630] He hesitated to accept the

management of the institution, but the Trustees finally prevailed upon

him to do so.[631] The son was as strong-willed and energetic as the

father, and gave himself vigorously to the work to which he had thus

been called.

Within four years troubles began to gather about the College. They came

from sources as strange as human nature itself, and mingled at last into

a compound of animosities, prejudices, ambitions, jealousies, as curious

as any aggregation of passions ever arranged by the most extravagant

novelist. It is possible here to mention but briefly only a few of the

circumstances by which the famous Dartmouth quarrel may be traced. A

woman, one Rachel Murch, complained to the church at Hanover, where

Dartmouth College was situated, that a brother of the congregation, one

Samuel Haze, had said of her, among other things, that her "character

was ... as black as Hell."[632] This incident grew into a sectarian

warfare that, by the most illogical and human processes, eventuated in

arraigning the Congregationalists, or "established" Church, on one side

and all other denominations on the other.[633]

Into this religious quarrel the economic issue entered, as it always

does. The property of ministers of the "standing order," or "State

religion," was exempt from taxation while that of other preachers was

not.[634] Another source of discord arose out of the question as to

whether the College Professor of Theology should preach in the village

church. Coincident with this grave problem were subsidiary ones

concerning the attendance of students at village worship and the benches

they were to occupy. The fates threw still another ingredient of trouble

into the cauldron. This was the election in 1793, as one of the

Trustees, of Nathaniel Niles, whom Jefferson, with characteristic

exuberance of expression, once declared to be "the ablest man I ever

knew."[635]

Although a lawyer by profession, Niles had taken a course in theology

when a student, his instructor being a Dr. Joseph Bellamy. Both the

elder Wheelock and Bellamy had graduated from Yale and had indulged in

some bitter sectarian quarrels, Bellamy as a Congregationalist and

Wheelock as a Presbyterian. From tutor and parent, Niles and the younger

Wheelock inherited this religious antagonism. Moreover, they were as

antipathetic by nature as they were bold, uncompromising, and dominant.

Niles eventually acquired superior influence over his fellow Trustees,

and thereafter no friend of President Wheelock was elected to the

Board.[636]

An implacable feud arose. Wheelock asked the Legislature to appoint a

committee to investigate the conduct of the College. This further

angered the Trustees. By this time the warfare in the one college in the

State had aroused the interest of the people of New Hampshire and,

indeed, of all New England, and they were beginning to take sides. This

process was hastened by a furious battle of pamphlets which broke out in

1815. This logomachy of vituperation was opened by President Wheelock

who wrote an unsigned attack upon the Trustees.[637] Another pamphlet

followed immediately in support of that of Wheelock.[638]

The Trustees quickly answered by means of two pamphlets.[639] The

Wheelock faction instantly replied.[640] With the animosity and

diligence of political, religious, and personal enemies, the adherents

of the hostile factions circulated these pamphlets among the people, who

became greatly excited. On August 26, 1815, the Trustees removed

Wheelock from the office of President,[641] and thereby increased the

public agitation. Two days after Wheelock's removal, the Trustees

elected as his successor the Reverend Francis Brown of Yarmouth,

Maine.[642]

During these years of increasing dissension, political parties were

gradually drawn into the controversy; at the climax of it, the

Federalists found themselves supporting the cause of the Trustees and

the Republicans that of Wheelock. In a general, and yet quite definite,

way the issue shaped itself into the maintenance of chartered rights and

the established religious order, as against reform in college management

and equality of religious sects. Into this issue was woven a contest

over the State Judiciary. The Judiciary laws of New Hampshire were

confused and inadequate and the courts had fallen in dignity. During the

Republican control of the State, Republicans had been appointed to all

judicial positions.[643] When, in 1813, the Federalists recovered

supremacy, they, in turn, enacted a statute, the effect of which was the

ousting of the Republican judges and the appointment of Federalists in

their stead.[644] The Republicans made loud and savage outcry against

this Federalist "outrage."

Upon questions so absurdly incongruous a political campaign raged

throughout New Hampshire during the autumn and winter of 1815. In March,

1816, the Republicans elected William Plumer Governor,[645] and a

Republican majority was sent to the Legislature.[646] Bills for the

reform of the Judiciary[647] and the management of Dartmouth

College[648] were introduced. That relating to Dartmouth changed the

name of the College to "Dartmouth University," increased the number of

Trustees from twelve to twenty-one, provided for a Board of twenty-five

Overseers with a veto power over acts of the Trustees, and directed the

President of the "University" to report annually to the Governor of the

State upon the management and conditions of the institution. The

Governor and Council of State were empowered to appoint the Overseers;

to fill up the existing Board of Trustees to the number of twenty-one;

and authorized to inspect the "University" and report to the Legislature

concerning it at least once in every five years.[649] In effect the act

annulled the charter and brought the College under the control of the

Legislature.

The bitterness occasioned by the passage of this legislation was

intense. Seventy-five members of the House entered upon the Journal

their formal and emphatic protest.[650] The old Trustees adopted

elaborate resolutions, declining to accept the provisions of the law and

assigning many reasons for their action. Among their criticisms of the

act, the fact that it violated the contract clause of the National

Constitution was mentioned almost incidentally. In summing up their

argument, the Trustees declared that "if the act ... has its intended

operation and effect, every literary institution in the State will

hereafter hold its rights, privileges and property, not according to the

settled established principles of law, but according to the arbitrary

will and pleasure of every successive Legislature."[651]

In later resolutions the old Trustees declined to accept the provisions

of the law, "but do hereby expressly refuse to act under the same."[652]

The Governor and Council promptly appointed Trustees and Overseers of

the new University; among the latter was Joseph Story. The old Trustees

were defiant and continued to run the College. When the winter session

of the Legislature met, Governor Plumer sharply denounced their

action;[653] and two laws were passed for the enforcement of the College

Acts, the second of which provided that any person assuming to act as

trustee or officer of the College, except as provided by law, should be

fined $500 for each offense.[654]

The Trustees of the University "removed" the old Trustees of the College

and the President, and the professors who adhered to them.[655] Each

side took its case to the people.[656] The new régime ousted the old

faculty from the College buildings and the faculty of the University

were installed in them. Wheelock was elected President of the State

institution.[657] The College faculty procured quarters in Rowley Hall

near by, and there continued their work, the students mostly adhering to

them.[658]

The College Trustees took great pains to get the opinion of the best

lawyers throughout New Hampshire,[659] as well as the advice of their

immediate counsel, Jeremiah Mason, Jeremiah Smith, and Daniel Webster,

the three ablest members of the New England bar, all three of them

accomplished politicians.[660]

William H. Woodward, who for years had been Secretary and Treasurer of

the College, had in his possession the records, account books, and seal.

As one of the Wheelock faction he declined to recognize the College

Trustees and acted with the Board of the University. The College

Trustees removed him from his official position on the College

Board;[661] and on February 8, 1817, brought suit against him in the

Court of Common Pleas of Grafton County for the recovery of the original

charter, the books of record and account, and the common seal--all of

the value of $50,000. By the consent of the parties the case was taken

directly before the Superior Court of Appeals, and was argued upon an

agreed state of facts returned by the jury in the form of a special

verdict.[662]

There were two arguments in the Court of Appeals, the first during May

and the second during September, 1817. The court consisted of William M.

Richardson, Chief Justice, and Samuel Bell and Levi Woodbury, Associate

Justices, all Republicans appointed by Governor Plumer.

Mason, Smith, and Webster made uncommonly able and learned arguments.

The University was represented by George Sullivan and Ichabod Bartlett,

who, while good lawyers, were no match for the legal triumvirate that

appeared for the College.[663] The principle upon which Marshall finally

overthrew the New Hampshire law was given a minor place[664] in the

plans as well as in the arguments of Webster, Mason, and Smith.

The Superior Court of Appeals decided against the College. The opinion,

delivered by Chief Justice Richardson, is able and persuasive. "A

corporation, all of whose franchises are exercised for publick purposes,

is a publick corporation"--a gift to such a corporation "is in reality

a gift to the publick."[665] The corporation of Dartmouth College is

therefore public. "Who has any private interest either in the objects or

the property of this institution?" If all its "property ... were

destroyed, the loss would be exclusively publick." The Trustees, as

individuals, would lose nothing. "The office of trustee of Dartmouth

College is, in fact, a publick trust, as much so as the office of

governor, or of judge of this court."[666]

No provision in the State or National Constitution prevents the control

of the College by the Legislature. The Constitutional provisions cited

by counsel for the College[667] "were, most manifestly, intended to

protect private rights only."[668] No court has ever yet decided that

such a charter as that of Dartmouth College is in violation of the

contract clause of the National Constitution, which "was obviously

intended to protect private rights of property, and embraces all

contracts relating to private property." This clause "was not intended

to limit the power of the states" over their officers or "their own

civil institutions";[669] otherwise divorce laws would be void. So would

acts repealing or modifying laws under which the judges, sheriffs, and

other officers were appointed.

Even if the royal charter is a contract, it does not, cannot forever,

prevent the Legislature from modifying it for the general good (as, for

instance, by increasing the number of trustees) "however strongly the

publick interest might require" this to be done. "Such a contract, in

relation to a publick institution, would ... be absurd and repugnant to

the principles of all government. The king had no power to make such a

contract," and neither has the Legislature. If the act of June 27 had

provided that "the twenty-one trustees should forever have the exclusive

controul of this institution, and that no future legislature should add

to their number," it would be as invalid as an act that the "number of

judges of this court should never be augmented."[670]

It is against "sound policy," Richardson affirmed, to place the great

institutions of learning "within the absolute controul of a few

individuals, and out of the controul of the sovereign power.... It is a

matter of too great moment, too intimately connected with the publick

welfare and prosperity, to be thus entrusted in the hands of a

few."[671] So the New Hampshire court adjudged that the College Acts

were valid and binding upon the old Trustees "without acceptance

thereof, or assent thereto by them." And the court specifically declared

that such legislation was "not repugnant to the constitution of the

United States."[672]

Immediately the case was taken to the Supreme Court by writ of error,

which assigned the violation of the National Constitution by the College

Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the

argument before a full bench.[674] Only a few auditors were present,

and these were lawyers[675] who were in Washington to argue other

cases.[676] Stirred as New Hampshire and the New England States were by

the College controversy, the remainder of the country appears to have

taken no interest in it. Indeed, west and south of the Hudson, the

people seem to have known nothing of the quarrel. The Capital was either

ignorant or indifferent. Moreover, Webster had not, as yet, made that

great reputation, in Washington, as a lawyer as well as an orator which,

later, became his peculiar crown of glory. At any rate, the public was

not drawn to the court-room on that occasion.[677]

The argument was one of the shortest ever made in a notable case before

the Supreme Court during the twenty-eight years of its existence up to

this time. Not three full days were consumed by counsel on both sides--a

space of time frequently occupied by a single speaker in hearings of

important causes.[678]

In talents, bearing, and preparation the attorneys for the College were

as much superior to those for the University as, in the Chase

impeachment trial, the counsel for the defense were stronger than the

House managers.[679] Indeed, the similarity of the arguments in the

Chase trial and in the Dartmouth case, in respect to the strength and

preparation of opposing counsel, is notable; and in both cases the

victory came to the side having the abler and better-prepared advocates.

With Webster for the College was Joseph Hopkinson of Philadelphia, who

had so distinguished himself in the Chase trial exactly thirteen years

earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader

of the Philadelphia bar and one of the most accomplished of American

lawyers.[680]

It would seem incredible that sensible men could have selected such

counsel to argue serious questions before any court as those who

represented the University in this vitally important controversy. The

obvious explanation is that the State officials and the University

Trustees were so certain of winning that they did not consider the

employment of powerful and expensive attorneys to be necessary.[681] In

fact, the belief was general that the contest was practically over and

that the appeal of the College to the Supreme Court was the pursuit of a

feeble and forlorn hope.

Even after his powerful and impressive argument in the Supreme Court,

Webster declared that he had never allowed himself "to indulge any great

hopes of success."[682] It was not unnatural, then, that the State and

the University should neglect to employ adequate counsel.

John Holmes, a Representative in Congress from that part of

Massachusetts which afterward became the State of Maine, appeared for

the University. He was notoriously unfitted to argue a legal question of

any weight in any court. He was a busy, agile, talkative politician of

the roustabout, hail-fellow-well-met variety, "a power-on-the-stump"

orator, gifted with cheap wit and tawdry eloquence.[683]

Associated with Holmes was William Wirt, recently appointed

Attorney-General. At that particular time Wirt was all but crushed by

overwork, and without either leisure or strength to master the case and

prepare an argument.[684] Never in Wirt's life did he appear in any case

so poorly equipped as he was in the Dartmouth controversy.[685]

Webster's address was a combination of the arguments made by Mason and

Smith in the New Hampshire court. Although the only question before the

Supreme Court was whether the College Acts violated the contract clause

of the Constitution, Webster gave comparatively scant attention to it;

or, perhaps it might be said that most of his argument was devoted to

laying the foundation for his brief reasoning on the main question. In

laying this foundation, Webster cleverly brought before the court his

version of the history of the College, the situation in New Hampshire,

the plight of institutions like Dartmouth, if the College Acts were

permitted to stand.

The facts were, said Webster, that Wheelock had founded a private

charity; that, to perpetuate this, the charter created a corporation by

the name of "The Trustees of Dartmouth College," with the powers,

privileges, immunities, and limitations set forth in the charter. That

instrument provided for no public funds, but only for the perpetuation

and convenient management of the private charity. For nearly half a

century the College "thus created had existed, uninterruptedly, and

usefully." Then its happy and prosperous career was broken by the rude

and despoiling hands of the Legislature of the State which the College

had so blessed by the education of New Hampshire youth.

What has the Legislature done to the College? It has created a new

corporation and transferred to it "all the _property_, _rights_,

_powers_, _liberties and privileges_ of the old corporation." The spirit

and the letter of the charter were wholly changed by the College

Acts.[686] Moreover, the old Trustees "are to be _punished_" for not

accepting these revolutionary laws. A single fact reveals the

confiscatory nature of these statutes: Under the charter the president,

professors, and tutors of the College had a right to their places and

salaries, "subject to the twelve trustees alone"; the College Acts

change all this and make the faculty "accountable to new masters."

If the Legislature can make such alterations, it can abolish the charter

"rights and privileges altogether." In short, if this legislation is

sustained, the old Trustees "have no _rights_, _liberties_,

_franchises_, _property or privileges_, which the legislature may not

revoke, annul, alienate or transfer to others whenever it sees fit."

Such acts are against "common right" as well as violations of the State

and National Constitutions.[687]

Although, says Webster, nothing is before the court but the single

question of the violation of the National Constitution, he will compare

the New Hampshire laws with "fundamental principles" in order that the

court may see "their true nature and character." Regardless of written

constitutions, "these acts are not the exercise of a power properly

legislative." They take away "vested rights"; but this involves a

"forfeiture ... to ... declare which is the proper province of the

judiciary."[688] Dartmouth College is not a civil but "an _eleemosynary_

corporation," a "private charity"; and, as such, not subject to the

control of public authorities.[689] Does Dartmouth College stand alone

in this respect? No! Practically all American institutions of learning

have been "established ... by incorporating governours, or trustees....

All such corporations are ... in the strictest legal sense a private

charity." Even Harvard has not "any surer title than Dartmouth College.

It may, to-day, have more friends; but to-morrow it may have more

enemies. Its legal rights are the same. So also of Yale College; and

indeed of all others."[690]

From the time of Magna Charta the privilege of being a member of such

eleemosynary corporations "has been the object of legal protection." To

contend that this privilege may be "taken away," because the Trustees

derive no "pecuniary benefit" from it, is "an extremely narrow view." As

well say that if the charter had provided that each Trustee should be

given a "commission on the disbursement of the funds," his status and

the nature of the corporation would have been changed from public to

private. Are the rights of the Trustees any the less sacred "because

they have undertaken to administer it [the trust] gratuitously?... As if

the law regarded no rights but the rights of money, and of visible

tangible property!"[691]

The doctrine that all property "of which the use may be beneficial to

the publick, belongs therefore to the publick," is without principle or

precedent. In this very matter of Dartmouth College, Wheelock might well

have "conveyed his property to trustees, for precisely such uses as are

described in this charter"--yet nobody would contend that any

Legislature could overthrow such a private act. "Who ever appointed a

legislature to administer his charity? Or who ever heard, before, that a

gift to a _college_, or _hospital_, or an _asylum_, was, in reality,

nothing but a gift to the state?"[692]

Vermont has given lands to the College; was this a gift to New

Hampshire? "What hinders Vermont ... from resuming her grants," upon the

ground that she, equally with New Hampshire, is "the representative of

the publick?" In 1794, Vermont had "granted to the respective towns in

that state, certain glebe lands lying within those towns _for the sole

use and support of religious worship_." Five years later, the

Legislature of that State repealed this grant; "but this court

declared[693] that the act of 1794, 'so far as it granted the glebes to

the towns, _could not afterwards be repealed by the legislature, so as

to divest the rights of the towns under the grant_.'"[694]

So with the Trustees of Dartmouth College. The property entrusted to

them was "private property"; and the right to "administer the funds,

and ... govern the college was a _franchise_ and _privilege_, solemnly

granted to them," which no Legislature can annul. "The use being publick

in no way diminishes their legal estate in the property, or their title

to the franchise." Since "the acts in question violate property, ...

take away privileges, immunities, and franchises, ... deny to the

trustees the protection of the law," and "are retrospective in their

operation," they are, in all respects, "against the constitution of New

Hampshire."[695]

It will be perceived by now that Webster relied chiefly on abstract

justice. His main point was that, if chartered rights could be

interfered with at all, such action was inherently beyond the power of

the Legislature, and belonged exclusively to the Judiciary. In this

Webster was rigidly following Smith and Mason, neither of whom depended

on the violation of the contract clause of the National Constitution any

more than did Webster.

Well did Webster know that the Supreme Court of the United States could

not consider the violation of a State constitution by a State law. He

merely indulged in a device of argument to bring before Marshall and the

Associate Justices those "fundamental principles," old as Magna Charta,

and embalmed in the State Constitution, which protect private property

from confiscation.[696] Toward the close of his argument, Webster

discusses the infraction of the National Constitution by the New

Hampshire College Acts, a violation the charge of which alone gave the

Supreme Court jurisdiction over the case.

What, asks Webster, is the meaning of the words, "no state shall pass

any ... law impairing the obligation of contracts"? Madison, in the

_Federalist_, clearly states that such laws "'are contrary to the first

principles of the social compact, and to every principle of sound

legislation.'" But this is not enough. "Our own experience," continues

Madison, "has taught us ... that additional fences" should be erected

against spoliations of "personal security and private rights." This was

the reason for inserting the contract clause in the National

Constitution--a provision much desired by the "sober people of America,"

who had grown "weary of the fluctuating policy" of the State Governments

and beheld with anger "that sudden changes, and legislative

interferences in cases affecting personal rights, become jobs in the

hands of enterprising and influential speculators." These, said Webster,

were the words of James Madison in Number 44 of the _Federalist_.

High as such authority is, one still more exalted and final has spoken,

and upon the precise point now in controversy. That authority is the

Supreme Court itself. In Fletcher _vs._ Peck[697] this very tribunal

declared specifically that "a _grant_ is a contract, within the meaning

of this provision; and that a grant by a state is also a contract, as

much as the grant of an individual."[698] This court went even further

when, in New Jersey _vs._ Wilson,[699] it decided that "a grant by a

state before the revolution is as much to be protected as a grant

since."[700] The principle announced in these decisions was not new,

even in America. Even before Fletcher _vs._ Peck and New Jersey _vs._

Wilson, this court denied[701] that a Legislature "can repeal statutes

creating private corporations, or confirming to them property already

acquired under the faith of previous laws, and by such repeal can vest

the property of such corporations exclusively in the state, or dispose

of the same to such purposes as they please, without the consent or

default of the corporators ...; and we think ourselves standing upon the

principles of _natural justice_, upon the _fundamental laws of every

free government_, upon the spirit and letter of the constitution of the

United States, and upon the decisions of the most respectable judicial

tribunals, in resisting such a doctrine."[702]

From the beginning of our Government until this very hour, continues

Webster, such has been the uniform language of this honorable court. The

principle that a Legislature cannot "repeal statutes creating private

corporations" must be considered as settled. It follows, then, that if a

Legislature cannot repeal such laws entirely, it cannot repeal them in

part--cannot "impair them, or essentially alter them without the consent

of the corporators."[703] In the case last cited[704] the property

granted was land; but the Dartmouth charter "is embraced within the very

terms of that decision," since "a grant of corporate powers and

privileges is as much a _contract_ as a grant of land."[705]

Even the State court concedes that if Dartmouth College is a private

corporation, "its rights stand on the same ground as those of an

individual"; and that tribunal rests its judgment against the College on

the sole ground that it is a public corporation.[706]

Dartmouth College is not the only institution affected by this invasion

of chartered rights. "Every college, and all the literary institutions

of the country" are imperiled. All of them exist because of "the

inviolability of their charters." Shall their fate depend upon "the rise

and fall of popular parties, and the fluctuations of political

opinions"? If so, "colleges and halls will ... become a theatre for the

contention of politicks. Party and faction will be cherished in the

places consecrated to piety and learning."

"We had hoped, earnestly hoped," exclaimed Webster, "that the State

court would protect Dartmouth College. That hope has failed. It is here,

that those rights are now to be maintained, or they are prostrated

forever." He closed with a long Latin quotation, not a word of which

Marshall understood, but which, delivered in Webster's sonorous tones

and with Webster's histrionic power, must have been prodigiously

impressive.[707]

Undoubtedly it was at this point that the incomparable actor, lawyer,

and orator added to his prepared peroration that dramatic passage which

has found a permanent place in the literature of emotional eloquence.

Although given to the world a quarter of a century after Webster's

speech was delivered, and transmitted through two men of vivid and

creative imaginations, there certainly is some foundation for the story.

Rufus Choate in his "Eulogy of Webster," delivered at Dartmouth College

in 1853, told, for the first time, of the incident as narrated to him by

Professor Chauncey A. Goodrich, who heard Webster's argument. When

Webster had apparently finished, says Goodrich, he "stood for some

moments silent before the Court, while every eye was fixed intently upon

him." At length, addressing the Chief Justice, Webster delivered that

famous peroration ending: "'Sir, you may destroy this little

Institution; it is weak; it is in your hands! I know it is one of the

lesser lights in the literary horizon of our country. You may put it

out. But if you do so, you must carry through your work! You must

extinguish, one after another, all those great lights of science which,

for more than a century, have thrown their radiance over our land!

"'It is, Sir, as I have said, a small College. And yet, _there are those

who love it_----'"[708]

Then, testifies Goodrich, Webster broke down with emotion, his lips

quivered, his cheeks trembled, his eyes filled with tears, his voice

choked. In a "few broken words of tenderness" he spoke of his love for

Dartmouth in such fashion that the listeners were impressed with "the

recollections of father, mother, brother, and all the trials and

privations through which he had made his way into life."[709]

Goodrich describes the scene in the court-room, "during these two or

three minutes," thus: "Chief Justice Marshall, with his tall and gaunt

figure bent over as if to catch the slightest whisper, the deep furrows

of his cheek expanded with emotion, and eyes suffused with tears; Mr.

Justice Washington at his side,--with his small and emaciated frame, and

countenance more like marble than I ever saw on any other human

being,--leaning forward with an eager, troubled look; and the remainder

of the Court, at the two extremities, pressing, as it were, toward a

single point, while the audience below were wrapping themselves round in

closer folds beneath the bench to catch each look, and every movement

of the speaker's face." Recovering "his composure, and fixing his keen

eye on the Chief Justice," Webster, "in that deep tone with which he

sometimes thrilled the heart of an audience," exclaimed:

"'Sir, I know not how others may feel,' (glancing at the opponents of

the College before him,) 'but, for myself, when I see my Alma Mater

surrounded, like Cæsar in the senate-house, by those who are reiterating

stab upon stab, I would not, for this right hand, have her turn to me,

and say, _Et tu quoque, mi fili!_'"[710]

Exclusive of his emotional finish, Webster's whole address was made up

from the arguments of Jeremiah Mason and Jeremiah Smith in the State

court.[711] This fact Webster privately admitted, although he never

publicly gave his associates the credit.[712]

When Farrar's "Report," containing Mason's argument, was published,

Story wrote Mason that he was "exceedingly pleased" with it. "I always

had a desire that the question should be put upon the broad basis you

have stated; and it was a matter of regret that we were so stinted in

jurisdiction in the Supreme Court, that half the argument could not be

met and enforced. You need not fear a comparison of your argument with

any in our annals."[713] Thus Story makes plain, what is apparent on the

face of his own and Marshall's opinion, that he considered the master

question involved to be that the College Acts were violative of

fundamental principles of government. Could the Supreme Court have

passed upon the case without regard to the Constitution, there can be no

doubt that the decision would have been against the validity of the New

Hampshire laws upon the ground on which Mason, Smith, and Webster

chiefly relied.

Webster, as we have seen, had little faith in winning on the contract

clause and was nervously anxious that the controversy should be

presented to the Supreme Court by means of a case which would give that

tribunal greater latitude than was afforded by the "stinted

jurisdiction" of which Story complained. Indeed, Story openly expressed

impatience that the court was restricted to a consideration of the

contract clause. Upon his return to Massachusetts after the argument,

Story as much as told Webster that another suit should be brought which

could be taken to the Supreme Court, and which would permit the court to

deal with all the questions raised by the New Hampshire College Acts.

Webster's report of this conversation is vital to an understanding of

the views of the Chief Justice, as well as of those of Story, since the

latter undoubtedly stated Marshall's views as well as his own. "I saw

Judge Story as I came along," Webster reported to Mason. "He is

evidently expecting a case which shall present all the questions. It is

not of great consequence whether the actions or action, go up at this

term, except that it would give it an earlier standing on the docket

next winter.

"The question which we must raise in one of these actions, is, 'whether,

by the _general principles of our governments_, the State Legislatures

be not restrained from divesting vested rights?' This, of course,

independent of the constitutional provision respecting contracts. On

this question [the maintenance of vested rights by "general principles"]

I have great confidence in a decision on the right side. This is the

proposition with which you began your argument at Exeter, and which I

endeavored to state from your minutes at Washington.... On _general_

principles, I am very confident the court at Washington would be with

us."[714]

Holmes followed Webster. "The God-like Daniel" could not have wished for

a more striking contrast to himself. In figure, bearing, voice, eye,

intellect, and personality, the Maine Congressman, politician, and

stump-speaker, was the antithesis of Webster. For three hours Holmes

declaimed "the merest stuff that was ever uttered in a county

court."[715] His "argument" was a diffuse and florid repetition of the

opinion of Chief Justice Richardson, and was one of those empty and

long-winded speeches which Marshall particularly disliked.

Wirt did his best to repair the damage done by Holmes; but he was so

indifferently prepared,[716] and so physically exhausted, that, breaking

down in the midst of his address, he asked the court to adjourn that he

might finish next day;[717] and this the bored and weary Justices were

only too willing to do. Wirt added nothing to the reasoning and facts of

Richardson's opinion which was in the hands of Marshall and his

associates.

The argument was closed by Joseph Hopkinson; and here again Fate acted

as stage manager for Dartmouth, since the author of "Hail Columbia"[718]

was as handsome and impressive a man as Webster, though of an exactly

opposite type. His face was that of the lifelong student, thoughtful and

refined. His voice, though light, had a golden tone. His manner was

quiet, yet distinguished.

[Illustration: JOSEPH HOPKINSON]

Joseph Hopkinson showed breeding in every look, movement, word, and

intonation.[719] He had a beautiful and highly trained mind, equipped

with immense and accurate knowledge systematically arranged.[720] It is

unfortunate that space does not permit even a brief _précis_ of

Hopkinson's admirable argument.[721] He quite justified Webster's

assurance to Brown that "Mr. Hopkinson ... will do all that man can

do."[722]

At eleven o'clock of March 13, 1818, the morning after the argument was

concluded, Marshall announced that some judges were of "different

opinions, and that some judges had not formed opinions; consequently,

the cause must be continued."[723] On the following day the court

adjourned.

Marshall, Washington, and Story[724] were for the College, Duval and

Todd were against it, and Livingston and Johnson had not made up their

minds.[725] During the year that intervened before the court again met

in February, 1819, hope sprang up in the hearts of Dartmouth's friends,

and they became incessantly active in every legitimate way. Webster's

argument was printed and placed in the hands of all influential lawyers

in New England.

Chancellor James Kent of New York was looked upon by the bench and bar

of the whole country as the most learned of American jurists and, next

to Marshall, the ablest.[726] The views of no other judge were so sought

after by his fellow occupants of the bench. Charles Marsh of New

Hampshire, one of the Trustees of the College and a warm friend of Kent,

sent him Webster's argument. While on a vacation in Vermont Kent had

read the opinion of Chief Justice Richardson and, "on a hasty perusal of

it," was at first inclined to think the College Acts valid, because he

was "led by the opinion to assume the fact that Dartmouth College was a

public establishment for purposes of a general nature."[727] Webster's

argument changed Kent's views.

During the summer of 1818, Justice Johnson, of the National Supreme

Court, was in Albany, where Kent lived, and conferred with the

Chancellor about the Dartmouth case. Kent told Johnson that he thought

the New Hampshire College Acts to be against natural right and in

violation of the contract clause of the National Constitution.[728] It

seems fairly certain also that Livingston asked for the Chancellor's

opinion, and was influenced by it.

Webster sent Story, with whom he was on terms of cordial intimacy, "five

copies of our argument." Evidently Webster now knew that Story was

unalterably for the College, for he adds these otherwise startling

sentences: "If you send one of them to each of such of the judges as you

think proper, you will of course do it in the manner least likely to

lead to a feeling that any indecorum has been committed by the

plaintiffs."[729]

In some way, probably from the fact that Story was an intimate friend of

Plumer, a rumor had spread, before the case was argued, that he was

against the College Trustees. Doubtless this impression was strengthened

by the fact that Governor Plumer had appointed Story one of the Board of

Overseers of the new University. No shrewder politician than Plumer ever

was produced by New England. But Story declined the appointment.[730] He

had been compromised, however, in the eyes of both sides. The friends of

the College were discouraged, angered, frightened.[731] In great

apprehension, Charles Marsh, one of the College Trustees, wrote

Hopkinson of Story's appointment as Overseer of the University and of

the rumor in circulation. Hopkinson answered heatedly that he would

object to Story's sitting in the case if the reports could be

confirmed.[732]

Although the efforts of the College to get its case before Kent were

praiseworthy rather than reprehensible, and although no smallest item of

testimony had been adduced by eager searchers for something unethical,

nevertheless out of the circumstances just related has been woven, from

the materials of eager imaginations, a network of suspicion involving

the integrity of the Supreme Court in the Dartmouth decision.[733]

Meanwhile the news had spread of the humiliating failure before the

Supreme Court of the flamboyant Holmes and the tired and exhausted Wirt

as contrasted with the splendid efforts of Webster and Hopkinson. The

New Hampshire officials and the University at last realized the mistake

they had made in not employing able counsel, and resolved to remedy

their blunder by securing the acknowledged leader of the American bar

whose primacy no judge or lawyer in the country denied. They did what

they should have done at the beginning--they retained William Pinkney of

Maryland.

Traveling with him in the stage during the autumn of 1818, Hopkinson

learned that the great lawyer had been engaged by the University.

Moreover, with characteristic indiscretion, Pinkney told Hopkinson that

he intended to request a reargument at the approaching session of the

Supreme Court. In alarm, Hopkinson instantly wrote Webster,[734] who was

dismayed by the news. Of all men the one Webster did not want to meet in

forensic combat was the legal Colossus from Baltimore.[735]

Pinkney applied himself to the preparation of the case with a diligence

and energy uncommon even for that most laborious and painstaking of

lawyers. Apparently he had no doubt that the Supreme Court would grant

his motion for a reargument. It was generally believed that some of the

Justices had not made up their minds; rearguments, under such

circumstances, were usually granted and sometimes required by the court;

and William Pinkney was the most highly regarded by that tribunal of all

practitioners before it. So, on February 1, 1819, he took the Washington

stage at Baltimore, prepared at every point for the supreme effort of

his brilliant career.[736]

Pinkney's purpose was, of course, well advertised by this time. By

nobody was it better understood than by Marshall and, indeed, by every

Justice of the Supreme Court. All of them, except Duval and Todd, had

come to an agreement and consented to the opinion which Marshall had

prepared since the adjournment the previous year.[737] None of them were

minded to permit the case to be reopened. Most emphatically John

Marshall was not.

When, at eleven o'clock, February 2, 1819, the marshal of the court

announced "The Honorable, the Chief Justice and the Associate Justices

of the Supreme Court of the United States," Marshall, at the head of his

robed associates, walked to his place, he beheld Pinkney rise, as did

all others in the room, to greet the court. Well did Marshall know that,

at the first opportunity, Pinkney would ask for a reargument.

From all accounts it would appear that Pinkney was in the act of

addressing the court when the Chief Justice, seemingly unaware of his

presence, placidly announced that the court had come to a decision and

began reading his momentous opinion.[738] After a few introductory

sentences the Chief Justice came abruptly to the main point of the

dispute:

"This court can be insensible neither to the magnitude nor delicacy of

this question. The validity of a legislative act is to be examined; and

the opinion of the highest law tribunal of a state is to be revised: an

opinion which carries with it intrinsic evidence of the diligence, of

the ability, and the integrity, with which it was formed. On more than

one occasion this court has expressed the cautious circumspection with

which it approaches the consideration of such questions; and has

declared that, in no doubtful case would it pronounce a legislative act

to be contrary to the constitution.

"But the American people have said, in the constitution of the United

States, that 'no state shall pass any bill of attainder, _ex post facto_

law, or law impairing the obligation of contracts.' In the same

instrument they have also said, 'that the judicial power shall extend to

all cases in law and equity arising under the constitution.' On the

judges of this court, then, is imposed the high and solemn duty of

protecting, from even legislative violation, those contracts which the

constitution of our country has placed beyond legislative control; and,

however irksome the task may be, this is a duty from which we dare not

shrink."[739]

Then Marshall, with, for him, amazing brevity, states the essential

provisions of the charter and of the State law that modified it;[740]

and continues, almost curtly: "It can require no argument to prove that

the circumstances of this case constitute a contract." On the faith of

the charter "large contributions" to "a religious and literary

institution" are conveyed to a corporation created by that charter.

Indeed, in the very application it is stated that these funds will be

so applied. "Surely in this transaction every ingredient of a complete

and legitimate contract is to be found."[741]

This being so, is such a contract "protected" by the Constitution, and

do the New Hampshire College Acts impair that contract? Marshall states

clearly and fairly Chief Justice Richardson's argument that to construe

the contract clause so broadly as to cover the Dartmouth charter would

prevent legislative control of public offices, and even make divorce

laws invalid; and that the intention of the framers of the Constitution

was to confine the operation of the contract clause to the protection of

property rights, as the history of the times plainly shows.[742]

All this, says Marshall, "may be admitted." The contract clause "never

has been understood to embrace other contracts than those which respect

property, or some object of value, and confer rights which may be

asserted in a court of justice." Divorce laws are not included, of

course--they merely enable a court, "not to impair a marriage contract,

but to liberate one of the parties because it has been broken by the

other."

The "point on which the cause essentially depends" is "the true

construction" of the Dartmouth charter. If that instrument grants

"political power," creates a "civil institution" as an instrument of

government; "if the funds of the college be public property," or if the

State Government "be alone interested in its transactions," the

Legislature may do what it likes "unrestrained" by the National

Constitution.[743]

If, on the other hand, Dartmouth "be a private eleemosynary

institution," empowered to receive property "for objects unconnected

with government," and "whose funds are bestowed by individuals on the

faith of the charter; if the donors have stipulated for the future

disposition and management of those funds in the manner prescribed by

themselves," the case becomes more difficult.[744] Marshall then sets

out compactly and clearly the facts relating to the establishment of

Wheelock's school; the granting and acceptance of the charter; the

nature of the College funds which "consisted entirely of private

donations." These facts unquestionably show, he avows, that Dartmouth

College is "an eleemosynary, and, as far as respects its funds, a

private corporation."[745]

Does the fact that the purpose of the College is the education of youth

make it a public corporation? It is true that the Government may found

and control an institution of learning. "But is Dartmouth College such

an institution? Is education altogether in the hands of government?" Are

all teachers public officers? Do gifts for the advancement of learning

"necessarily become public property, so far that the will of the

legislature, not the will of the donor, becomes the law of

donation?"[746]

Certainly Eleazar Wheelock, teaching and supporting Indians "at his own

expense, and on the voluntary contributions of the charitable," was not

a public officer. The Legislature could not control his money and that

given by others, merely because Wheelock was using it in an educational

charity. Whence, then, comes "the idea that Dartmouth College has become

a public institution?... Not from the source" or application of its

funds. "Is it from the act of incorporation?"[747]

Such is the process by which Marshall reaches his famous definition of

the word "corporation": "A corporation is an artificial being,

invisible, intangible, and existing only in contemplation of law.... It

possesses only those properties which the charter of its creation

confers upon it.... Among the most important are immortality, and ...

individuality.... By these means, a perpetual succession of individuals

are capable of acting for the promotion of the particular object, like

one immortal being.... But ... it is no more a state instrument than a

natural person exercising the same powers would be."[748]

This, says Marshall, is obviously true of all private corporations. "The

objects for which a corporation is created are universally such as the

government wishes to promote." Why should a private charity,

incorporated for the purpose of education, be excluded from the rules

that apply to other corporations? An individual who volunteers to teach

is not a public officer because of his personal devotion to education;

how, then, is it that a corporation formed for precisely the same

service "should become a part of the civil government of the country?"

Because the Government has authorized the corporation "to take and to

hold property in a particular form, and for particular purposes, has the

Government a consequent right substantially to change that form, or to

vary the purposes to which the property is to be applied?" Such an idea

is without precedent. Can it be supported by reason?[749]

Any corporation for any purpose is created only because it is "deemed

beneficial to the country; and this benefit constitutes the

consideration, and, in most cases, the sole consideration for the

grant." This is as true of incorporated charities as of any other form

of incorporation. Of consequence, the Government cannot, subsequently,

assume a power over such a corporation which is "in direct contradiction

to its [the corporate charter's] express stipulations." So the mere fact

"that a charter of incorporation has been granted" does not justify a

Legislature in changing "the character of the institution," or in

transferring "to the Government any new power over it."

"The character of civil institutions does not grow out of their

incorporation, but out of the manner in which they are formed, and the

objects for which they are created. The right to change them is not

founded on their being incorporated, but on their being the instruments

of government, created for its purposes. The same institutions, created

for the same objects, though not incorporated, would be public

institutions, and, of course, be controllable by the legislature. The

incorporating act neither gives nor prevents this control. Neither, in

reason, can the incorporating act change the character of a private

eleemosynary institution."[750]

For whose benefit was the property of Dartmouth College given to that

institution? For the people at large, as counsel insist? Read the

charter. Does it give the State "any exclusive right to the property of

the college, any exclusive interest in the labors of the professors?"

Does it not rather "merely indicate a willingness that New Hampshire

should enjoy those advantages which result to all from the establishment

of a seminary of learning in the neighborhood? On this point we think it

impossible to entertain a serious doubt." For the charter shows that,

while the spread of education and religion was the object of the

founders of the College, the "particular interests" of the State "never

entered into the minds of the donors, never constituted a motive for

their donation."[751]

It is plain, therefore, that every element of the problem shows "that

Dartmouth College is an eleemosynary institution, incorporated for the

purpose of perpetuating ... the bounty of the donors, to the specified

objects of that bounty"; that the Trustees are legally authorized to

perpetuate themselves and that they are "not public officers"; that, in

fine, Dartmouth College is a "seminary of education, incorporated for

the preservation of its property, and the perpetual application of that

property to the objects of its creation."[752]

There remains a question most doubtful of "all that have been

discussed." Neither those who have given money or land to the College,

nor students who have profited by those benefactions, "complain of the

alteration made in its charter, or think themselves injured by it. The

trustees alone complain, and the trustees have no beneficial interest to

be protected." Can the charter "be such a contract as the constitution

intended to withdraw from the power of state legislation?"[753]

Wheelock and the other philanthropists who had endowed the College, both

before and after the charter was granted, made their gifts "for

something ... of inestimable value--... the perpetual application of the

fund to its object, in the mode prescribed by themselves.... The

corporation ... stands in their place, and distributes their bounty, as

they would themselves have distributed it, had they been immortal." Also

the rights of the students "collectively" are "to be exercised ... by

the corporation."[754]

The British Parliament is omnipotent. Yet had it annulled the charter,

even immediately after it had been granted and conveyances made to the

corporation upon the faith of that charter, "so that the living donors

would have witnessed the disappointment of their hopes, the perfidy of

the transaction would have been universally acknowledged." Nevertheless,

Parliament would have had the power to perpetrate such an outrage.

"Then, as now, the donors would have had no interest in the

property; ... the students ... no rights to be violated; ... the

trustees ... no private, individual, beneficial interest in the property

confided to their protection." But, despite the legal power of

Parliament to destroy it, "the contract would at that time have been

deemed sacred by all."

"What has since occurred to strip it of its inviolability? Circumstances

have not changed it. In reason, in justice, and in law, it is now what

it was in 1769." The donors and Trustees, on the one hand, and the Crown

on the other, were the original parties to the arrangement stated in the

charter, which was "plainly a contract" between those parties. To the

"rights and obligations" of the Crown under that contract, "New

Hampshire succeeds."[755] Can such a contract be impaired by a State

Legislature?

"It is a contract made on a valuable consideration.

"It is a contract for the security and disposition of property.

"It is a contract, on the faith of which real and personal estate has

been conveyed to the corporation.

"It is then a contract within the letter of the constitution, and within

its spirit also, unless" the nature of the trust creates "a particular

exception, taking this case out of the prohibition contained in the

constitution."

It is doubtless true that the "preservation of rights of this

description was not particularly in the view of the framers of the

constitution when the clause under consideration was introduced into

that instrument," and that legislative interferences with contractual

obligations "of more frequent recurrence, to which the temptation was

stronger, and of which the mischief was more extensive, constituted the

great motive for imposing this restriction on the state legislatures.

"But although a particular and a rare case may not ... induce a rule,

yet it must be governed by the rule, when established, unless some plain

and strong reason for excluding it can be given. It is not enough to say

that this particular case was not in the mind of the convention when the

article was framed, nor of the American people when it was adopted. It

is necessary to go farther, and to say that, had this particular case

been suggested, the language [of the contract clause] would have been so

varied as to exclude it, or it would have been made a special

exception."[756]

Can the courts now make such an exception? "On what safe and

intelligible ground can this exception stand?" Nothing in the language

of the Constitution; no "sentiment delivered by its contemporaneous

expounders ... justify us in making it."

Does "the nature and reason of the case itself ... sustain a

construction of the constitution, not warranted by its words?" The

contract clause was made a part of the Nation's fundamental law "to give

stability to contracts." That clause in its "plain import" comprehends

Dartmouth's charter. Does public policy demand a construction which

will exclude it? The fate of all similar corporations is involved. "The

law of this case is the law of all."[757] Is it so necessary that

Legislatures shall "new-model" such charters "that the ordinary rules of

construction must be disregarded in order to leave them exposed to

legislative alteration?"

The importance attached by the American people to corporate charters

like that of Dartmouth College is proved by "the interest which this

case has excited." If the framers of the Constitution respected science

and literature so highly as to give the National Government exclusive

power to protect inventors and writers by patents and copyrights, were

those statesman "so regardless of contracts made for the advancement of

literature as to intend to exclude them from provisions made for the

security of ordinary contracts between man and man?"[758]

No man ever did or will found a college, "believing at the time that an

act of incorporation constitutes no security for the institution;

believing that it is immediately to be deemed a public institution,

whose funds are to be governed and applied, not by the will of the

donor, but by the will of the legislature. All such gifts are made in

the pleasing, perhaps delusive hope, that the charity will flow forever

in the channel which the givers have marked out for it."

Since every man finds evidence of this truth "in his own bosom," can it

be imagined that "the framers of our constitution were strangers" to

the same universal sentiment? Although "feeling the necessity ... of

giving permanence and security to contracts," because of the

"fluctuating" course and "repeated interferences" of Legislatures which

resulted in the "most perplexing and injurious embarrassments," did the

framers of the Constitution nevertheless deem it "necessary to leave

these contracts subject to those interferences?" Strong, indeed, must be

the motives for making such exceptions.[759]

Finally, Marshall declares that the "opinion of the court, after mature

deliberation, is, that this is a contract, the obligation of which

cannot be impaired without violating the Constitution of the United

States."[760]

Do the New Hampshire College Acts impair the obligations of Dartmouth's

charter? That instrument gave the Trustees "the whole power of governing

the college"; stipulated that the corporation "should continue forever";

and "that the number of trustees should forever consist of twelve, and

no more." This contract was made by the Crown, a power which could have

made "no violent alteration in its essential terms, without impairing

its obligation."

The powers and duties of the Crown were, by the Revolution, "devolved on

the people of New Hampshire." It follows that, since the Crown could not

change the charter of Dartmouth without impairing the contract, neither

can New Hampshire. "All contracts, and rights, respecting property,

remained unchanged by the revolution."[761]

As to whether the New Hampshire College Acts radically alter the charter

of Dartmouth College, "two opinions cannot be entertained." The State

takes over the government of the institution. "The will of the state is

substituted for the will of the donors, in every essential operation of

the college.... The charter of 1769 exists no longer"--the College has

been converted into "a machine entirely subservient to the will of

government," instead of the "will of its founders."[762] Therefore, the

New Hampshire College laws "are repugnant to the constitution of the

United States."[763]

On account of the death of Woodward, who had been Secretary and

Treasurer of the University, and formerly held the same offices in the

College against whom the College Trustees had brought suit, Webster

moved for judgment _nunc pro tunc_; and judgment was immediately entered

accordingly.

Not for an instant could Webster restrain the expression of his joy.

Before leaving the court-room he wrote his brother: "All is safe.... The

opinion was delivered by the Chief Justice. It was very able and very

elaborate; it goes the whole length, and leaves not an inch of ground

for the University to stand on."[764] He informed President Brown that

"all is safe and certain.... I feel a load removed from my shoulders

much heavier than they have been accustomed to bear."[765] To Mason,

Webster describes Marshall's manner: "The Chief Justice's opinion was

in his own peculiar way. He reasoned along from step to step; and, not

referring to the cases [cited], adopted the principles of them, and

worked the whole into a close, connected, and very able argument."[766]

At the same time Hopkinson wrote Brown in a vein equally exuberant: "Our

triumph ... has been complete. Five judges, only six attending, concur

not only in a decision in our favor, but in placing it upon principles

broad and deep, and which secure corporations of this description from

legislative despotism and party violence for the future.... I would have

an inscription over the door of your building, 'Founded by Eleazar

Wheelock, Refounded by Daniel Webster.'"[767] The high-tempered Pinkney

was vocally indignant. "He talked ... and blustered" ungenerously, wrote

Webster, "because ... the party was in a fever and he must do something

for his fees. As he could not talk _in_ court, he therefore talked _out_

of court."[768]

As we have seen, Marshall had prepared his opinion under his trees at

Richmond and in the mountains during the vacation of 1818; and he had

barely time to read it to his associates before the opening of court at

the session when it was delivered. But he afterward submitted the

manuscript to Story, who made certain changes, although enthusiastically

praising it. "I am much obliged," writes Marshall, "by the alterations

you have made in the Dartmouth College case & am highly gratified by

what you say respecting it."[769]

Story also delivered an opinion upholding the charter[770]--one of his

ablest papers. It fairly bristles with citations of precedents and

historical examples. The whole philosophy of corporations is expounded

with clearness, power, and learning. Apparently Justice Livingston liked

Story's opinion even more than that of Marshall. Story had sent it to

Livingston, who, when returning the manuscript, wrote: It "has afforded

me more pleasure than can easily be expressed. It was exactly what I had

expected from you, and hope it will be adopted without alteration."[771]

At the time of the Dartmouth decision little attention was paid to it

outside of New Hampshire and Massachusetts.[772] The people, and even

the bar, were too much occupied with bank troubles, insolvency, and the

swiftly approaching slavery question, to bother about a small New

Hampshire college. The profound effect of Marshall's opinion was first

noted in the _North American Review_ a year after the Chief Justice

delivered it. "Perhaps no judicial proceedings in this country ever

involved more important consequences, ... than the case of Dartmouth

College."[773]

Important, indeed, were the "consequences" of the Dartmouth decision.

Everywhere corporations were springing up in response to the necessity

for larger and more constant business units and because of the

convenience and profit of such organizations. Marshall's opinion was a

tremendous stimulant to this natural economic tendency. It reassured

investors in corporate securities and gave confidence and steadiness to

the business world. It is undeniable and undenied that America could not

have been developed so rapidly and solidly without the power which the

law as announced by Marshall gave to industrial organization.

One result of his opinion was, for the period, of even higher value than

the encouragement it gave to private enterprise and the steadiness it

brought to business generally; it aligned on the side of Nationalism all

powerful economic forces operating through corporate organization. A

generation passed before railway development began in America; but

Marshall lived to see the first stage of the evolution of that mighty

element in American commercial, industrial, and social life; and all of

that force, except the part of it which was directly connected with and

under the immediate influence of the slave power, was aggressively and

most effectively Nationalist.

That this came to be the fact was due to Marshall's Dartmouth opinion

more than to any other single cause. The same was true of other

industrial corporate organizations. John Fiske does not greatly

exaggerate in his assertion that the law as to corporate franchises

declared by Marshall, in subjecting to the National Constitution every

charter granted by a State "went farther, perhaps, than any other in our

history toward limiting State sovereignty and extending the Federal

jurisdiction."[774]

Sir Henry Sumner Maine has some ground for his rather dogmatic statement

that the principle of Marshall's opinion "is the basis of credit of many

of the great American Railway Incorporations," and "has ... secured full

play to the economical forces by which the achievement of cultivating

the soil of the North American Continent has been performed." Marshall's

statesmanship is, asserts Maine, "the bulwark of American individualism

against democratic impatience and Socialistic fantasy."[775] Such views

of the Dartmouth decision are remarkably similar to those which Story

himself expressed soon after it was rendered. Writing to Chancellor

Kent Story says: "Unless I am very much mistaken the principles on which

that decision rests will be found to apply with an extensive reach to

all the great concerns of the people, and will check any undue

encroachments upon civil rights, which the passions or the popular

doctrines of the day may stimulate our State Legislatures to

adopt."[776]

The court's decision, however, made corporate franchises infinitely more

valuable and strengthened the motives for procuring them, even by

corruption. In this wise tremendous frauds have been perpetrated upon

negligent, careless, and indifferent publics; and "enormous and

threatening powers," selfish and non-public in their purposes and

methods, have been created.[777] But Marshall's opinion put the public

on its guard. Almost immediately the States enacted laws reserving to

the Legislature the right to alter or repeal corporate charters; and the

constitutions of several States now include this limitation on corporate

franchises. Yet these reservations did not, as a practical matter,

nullify or overthrow Marshall's philosophy of the sacredness of

contracts.

Within the last half-century the tendency has been strongly away from

the doctrine of the Dartmouth decision, and this tendency has steadily

become more powerful. The necessity of modifying and even abrogating

legislative grants, more freely than is secured by the reservation to do

so contained in State constitutions and corporate charters, has further

restricted the Dartmouth decision. It is this necessity that has

produced the rapid development of "that well-known but undefined power

called the police power,"[778] under which laws may be passed and

executed, in disregard of what Marshall would have called contracts,

provided such laws are necessary for the protection or preservation of

life, health, property, morals, or order. The modern doctrine is that

"the Legislature cannot, by any contract, divest itself of the power to

provide for these objects.... They are to be attained and provided for

by such appropriate means as the legislative discretion may devise. That

discretion can no more be bargained away than the power itself."[779]

Aside from the stability which this pronouncement of the Chief Justice

gave to commercial transactions in general, and the confidence it

inspired throughout the business world, the largest permanent benefit of

it to the American people was to teach them that faith once plighted,

whether in private contracts or public grants, must not and cannot be

broken by State legislation; that, by the fundamental law which they

themselves established for their own government, they as political

entities are forbidden to break their contracts by enacting statutes,

just as, by the very spirit of the law, private persons are forbidden to

break their contracts. If it be said that their representatives may

betray the people, the plain answer is that the people must learn to

elect honest agents.

For exactly a century Marshall's Dartmouth opinion has been assailed

and the Supreme Court itself has often found ways to avoid its

conclusions. But the theory of the Chief Justice has shown amazing

vitality. Sixty years after Marshall delivered it, Chief Justice Waite

declared that the principles it announced are so "imbedded in the

jurisprudence of the United States as to make them to all intents and

purposes a part of the Constitution itself."[780] Thirty-one years after

Marshall died, Justice Davis avowed that "a departure from it

[Marshall's doctrine] _now_ would involve dangers to society that cannot

be foreseen, would shock the sense of justice of the country, unhinge

its business interests, and weaken, if not destroy, that respect which

has always been felt for the judicial department of the

Government."[781] As late as 1895, Justice Brown asserted that it has

"become firmly established as a canon of American jurisprudence."[782]

It was a principle which Marshall introduced into American

Constitutional law, and, fortunately for the country, that principle

still stands; but to-day the courts, when construing a law said to

impair the obligation of contracts, most properly require that it be

established that the unmistakable purpose of the Legislature is to make

an actual contract for a sufficient consideration.[783]

It is highly probable that in the present state of the country's

development, the Supreme Court would not decide that the contract clause

so broadly protects corporate franchises as Marshall held a century ago.

In considering the Dartmouth decision, however, the state of things

existing when it was rendered must be taken into account. It is certain

that Marshall was right in his interpretation of corporation law as it

existed in 1819; right in the practical result of his opinion in that

particular case; and, above all, right in the purpose and effect of that

opinion on the condition and tendency of the country at the perilous

time it was delivered.

FOOTNOTES:

[615] See vol. I, 147, 231, of this work.

[616] See vol. III, chap. X, of this work.

[617] 7 Cranch, 164.

[618] _Ib._ 165.

[619] 7 Cranch, 166-67.

[620] This was true also of the entire court, since all the Justices

concurred in Marshall's opinions in both cases as far as the legislative

violations of the contract clause were concerned.

[621] He was not at all related to the Chief Justice. See vol. I,

footnote to 15-16, of this work.

[622] Chase: _History of Dartmouth College and the Town of Hanover, New

Hampshire_, I, 49.

[623] Chase, 45-48.

[624] _Ib._ 59.

[625] _Ib._ 54-55.

[626] Dartmouth and the English Trustees opposed incorporation and the

Bishops of the Church of England violently resisted Wheelock's whole

project. (_Ib._ 90.)

[627] Farrar: _Report of the Case of the Trustees of Dartmouth College

against William H. Woodward_, 11, 16; also see Charter of Dartmouth

College, Chase, 639-49. (Although the official copy of the charter

appears in Chase's history, the author cites Farrar in the report of the

case; the charter also is cited from his book.)

[628] Chase, 556.

[629] See Wheelock's will, _ib._ 562.

[630] Young Wheelock was very active in the Revolution. He was a member

of the New Hampshire Assembly in 1775, a Captain in the army in 1776, a

Major the following year, and then Lieutenant-Colonel, serving on the

staff of General Horatio Gates until called from military service by the

death of his father in 1779. (See Smith: _History of Dartmouth College_,

76.)

[631] Chase, 564.

[632] Rachel Murch "To y^e Session of y^e Church of Christ in Hanover,"

April 26, 1783, Shirley: _Dartmouth College Causes and the Supreme Court

of the Untied States_, 67.

[633] Shirley, 66-70.

[634] _Ib._ 70-75. Only three of the scores of Congregationalist

ministers in New Hampshire were Republicans. (_Ib._ 70.)

[635] _Ib._ 82.

[636] Shirley, 81, 84-85.

[637] _Sketches of the History of Dartmouth College and Moors' Charity

School._

[638] _A Candid, Analytical Review of the Sketches of the History of

Dartmouth College._

[639] _Vindication of the Official Conduct of the Trustees_, etc., and

_A True and Concise Narrative of the Origin and Progress of the Church

Difficulties_, by Benoni Dewey, James Wheelock, and Benjamin J. Gilbert.

[640] _Answer to the "Vindication_," etc., by Josiah Dunham.

[641] Lord: _History of Dartmouth College_, 73-77.

[642] Lord, 78.

[643] In 1811 the salary of Chief Justices of the Court of Common Pleas

for four of the counties was fixed at $200 a year; and that of the other

Justices of those courts at $180. "The Chief Justice of said court in

Grafton County, $180, and the other Justices in that court $160." (Act

of June 21, _Laws of New Hampshire, 1811_, 33.)

[644] Acts of June 24 and Nov. 5, _Laws of New Hampshire, 1813_, 6-19;

Barstow: _History of New Hampshire_, 363-64; Morison: _Life of Jeremiah

Smith_, 265-67. This law was, however, most excellent. It established a

Supreme Court and systematized the entire judicial system.

[645] This was the second time Plumer had been elected Governor. He was

first chosen to that office in 1812. Plumer had abandoned the failing

and unpatriotic cause of Federalism in 1808 (Plumer, 365), and had since

become an ardent follower of Jefferson.

[646] The number of votes cast at this election was the largest ever

polled in the history of the State up to that time. (_Ib._ 432.)

[647] See Act of June 27, _Laws of New Hampshire, 1816_, 45-48. This

repealed the Federalist Judiciary Acts of 1813 and revived laws repealed

by those acts. (See Barstow, 383, and Plumer, 437-38.)

The burning question of equality of religious taxation was not taken up

by this Legislature. The bill was introduced in the State Senate by the

Reverend Daniel Young, a Methodist preacher, but it received only three

votes. Apparently the reform energy of the Republicans was, for that

session, exhausted by the Judiciary and College Acts. The "Toleration

Act" was not passed until three years later. (McClintock: _History of

New Hampshire_, 507-29; also Barstow, 422.) This law is omitted from the

published acts, although it is indexed.

[648] In his Message to the Legislature recommending reform laws for

Dartmouth College, Governor Plumer denounced the provision of the

charter relating to the Trustees as "hostile to the spirit and genius of

a free government." (Barstow, 396.) This message Plumer sent to

Jefferson, who replied that the idea "that institutions, established for

the use of the nation, cannot be touched nor modified, even to make them

answer their end ... is most absurd.... Yet our lawyers and priests

generally inculcate this doctrine; and suppose that preceding

generations ... had a right to impose laws on us, unalterable by

ourselves; ... in fine, that the earth belongs to the dead, and not to

the living." (Jefferson to Plumer, July 21, 1816, Plumer, 440-41.)

[649] Act of June 27, _Laws of New Hampshire_, 1816, 48-51; and see

Lord, 687-90.

The temper of the Republicans is illustrated by a joint resolution

adopted June 29, 1816, denouncing the increase of salaries of Senators

and Representatives in Congress, which "presents the most inviting

inducements to avarice and ambition," "will introduce a monopolizing

power," and "contaminate our elections." (Act of June 27, _Laws of New

Hampshire_, 1816, 65-66.)

[650] _Journal_, House of Representatives (N.H.), June 28, 1816, 238-41.

[651] Resolutions of the Trustees, Lord, 690-94.

[652] Lord, 96.

[653] "It is an important question and merits your serious consideration

whether a law passed and approved by all the constituted authorities of

the State shall be carried into effect, or whether _a few individuals_

not vested with _any judicial authority_ shall be permitted to declare

your statutes _dangerous and arbitrary, unconstitutional and void_:

whether a _minority_ of the trustees of a literary institution formed

for the education of your children shall be encouraged to inculcate the

doctrine of resistance to the law and their example tolerated in

disseminating principles of insubordination and rebellion against

government." (Plumer's Message, Nov. 20, 1816, Lord, 103.)

[654] Acts of Dec. 18 and 26, 1816, (_Laws of New Hampshire, 1816_,

74-75; see also Lord, 104.)

[655] Lord, 111-12.

[656] _Ib._ 112-15.

[657] _Ib._ 115.

[658] Lord, 121. So few students went with the University that it dared

not publish a catalogue. (_Ib._ 129.)

[659] _Ib._ 92.

[660] One of the many stories that sprang up in after years about

Webster's management of the case is that, since the College was founded

for the education of Indians and none of them had attended for a long

time, Webster advised President Brown to procure two or three. Brown got

a number from Canada and brought them to the river beyond which were the

College buildings. While the party were rowing across, the young

Indians, seeing the walls and fearing that they were to be put in

prison, gave war whoops, sprang into the stream, swam to shore and fled.

So Webster had to go on without them. (Harvey: _Reminiscences and

Anecdotes of Daniel Webster_, 111-12.) There is not the slightest

evidence to support this absurd tale. (Letters to the author from Eugene

F. Clark, Secretary of Dartmouth College, and from Professor John K.

Lord, author of _History of Dartmouth College_.)

[661] Lord, 99.

[662] Farrar, 1.

[663] These arguments are well worth perusal. (See Farrar, 28-206; also

65 N.H. Reports, 473-624.)

[664] For instance, Mason's argument, which is very compact, consists of

forty-two pages of which only four are devoted to "the contract clause"

of the National Constitution and the violation of it by the New

Hampshire College Act. (Farrar, 28-70; 65 N.H. 473-502.)

[665] Farrar, 212-13; 65 N.H. 628-29.

[666] Farrar, 214-15; 65 N.H. 630.

[667] The contract clause.

[668] Farrar, 216; 65 N.H. 631.

[669] Farrar, 228-29; 65 N.H. 639.

[670] Farrar, 231; 65 N.H. 641.

[671] Farrar, 232; 65 N.H. 642.

[672] Farrar, 235.

[673] _Ib._

[674] Webster was then thirty-six years of age.

[675] Goodrich's statement in Brown: _Works of Rufus Choate: With a

Memoir of his Life_, I, 515.

[676] They were Rufus Greene Amory and George Black of Boston, David B.

Ogden and "a Mr. Baldwin from New York," Thomas Sergeant and Charles J.

Ingersoll of Philadelphia, John Wickham, Philip Norborne, Nicholas and

Benjamin Watkins Leigh of Virginia, and John McPherson Berrien of

Georgia. (Webster to Sullivan, Feb. 27, 1818, _Priv. Corres_.: Webster,

I, 273.)

[677] Brown, I, 515. Story makes no comment on the argument of the

Dartmouth case--a pretty sure sign that it attracted little attention in

Washington. Contrast Story's silence as to this argument with his vivid

description of that of M'Culloch _vs._ Maryland (_infra_, chap. VI).

Goodrich attributes the scant attendance to the fact that the court sat

"in a mean apartment of moderate size"; but that circumstance did not

keep women as well as men from thronging the room when a notable case

was to be heard or a celebrated lawyer was to speak. (See description of

the argument of the case of the Nereid, _supra_, 133-34.)

[678] For example, in M'Culloch _vs._ Maryland, Luther Martin spoke for

three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and see

_infra_, chap, VI.)

[679] See vol. III, chap, IV, of this work.

[680] The College Trustees at first thought of employing Luther Martin

to assist Webster in the Supreme Court (Brown to Kirkland, Nov. 15,

1817, as quoted by Warren in _American Law Review_, XLVI, 665). It is

possible that Hopkinson was chosen instead, upon the advice of Webster,

who kept himself well informed of the estimate placed by Marshall and

the Associate Justices on lawyers who appeared before them. Marshall

liked and admired Hopkinson, had been his personal friend for years, and

often wrote him. When Peters died in 1828, Marshall secured the

appointment of Hopkinson in his place. (Marshall to Hopkinson, March 16,

1827, and same to same [no date, but during 1828], Hopkinson MSS.)

[681] It was considered to be a "needless expense" to send the original

counsel, Sullivan and Bartlett, to Washington. (Lord, 140.)

[682] Webster to McGaw, July 27, 1818, Van Tyne, 77.

[683] Shirley, 229-32. The fact that Holmes was employed plainly shows

the influence of "practical politics" on the State officials and the

Trustees of the University. The Board voted December 31, 1817, "to take

charge of the case." Benjamin Hale, one of the new Trustees, was

commissioned to secure other counsel if Holmes did not accept.

Apparently Woodward was Holmes's champion: "I have thought him extremely

ready ... [a] good lawyer, inferior to D. W. only in point of oratory."

(Woodward to Hall, Jan. 18, 1818, Lord, 139-40.) Hardly had Hale reached

Washington than he wrote Woodward: "Were you sensible of the low ebb of

Mr. Holmes' reputation here, you would ... be unwilling to trust the

cause with him." (Hale to Woodward, Feb. 15, 1818, _ib._ 139.)

[684] "It is late at night--the fag-end of a hard day's work. My eyes,

hand and mind all tired.... I have been up till midnight, at work, every

night, and still have my hands full.... I am now worn out ... extremely

fatigued.... The Supreme Court is approaching. It will half kill you to

hear that it will find me unprepared." (Wirt to Carr, Jan. 21, 1818,

Kennedy, II, 73-74.) Wirt had just become Attorney-General. Apparently

he found the office in very bad condition. The task of putting it in

order burdened him. He was compelled to do much that was not "properly

[his] duty." (_Ib._ 73.) His fee in the Dartmouth College case did not

exceed $500. (Hale to Plumer, Jan. 1818, Lord, 140.)

[685] "He seemed to treat this case as if his side could furnish nothing

but declamation." (Webster to Mason, March 13, 1818, _Priv. Corres._:

Webster, I, 275.)

[686] Farrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, I,

163-66.

[687] Farrar, 242-44; 65 N.H. 597-98; 4 Wheaton, 556-57.

[688] Farrar, 244; 65 N.H. 598-99; 4 Wheaton, 558-59.

[689] Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64.

[690] Farrar, 255-56; 65 N.H. 605-06; 4 Wheaton, 567-68.

[691] Farrar, 258-59; 65 N.H. 607-08; 4 Wheaton, 571-72.

[692] Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571.

[693] In Terrett _vs._ Taylor, 9 Cranch, 45 _et seq._ Story delivered

the unanimous opinion of the Supreme Court in this case. This fact was

well known at the time of the passage of the College Acts; and, in view

of it, there is difficulty in understanding how Story could have been

expected to support the New Hampshire legislation. (See _infra_, 257.)

[694] Farrar, 262; 65 N.H. 609-10; 4 Wheaton, 574-75.

[695] Farrar, 273; 65 N.H. 617; 4 Wheaton, 588.

[696] Farrar, 246-47; 65 N.H. 598-600; 4 Wheaton, 557-59.

[697] See vol. III, chap, X, of this work.

[698] Farrar, 273-74; 65 N.H. 618-19; 4 Wheaton, 591-92.

[699] _Supra_, 223.

[700] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591.

[701] In Terrett _vs._ Taylor, see _supra_, footnote to 243.

[702] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.)

It will be observed that Webster puts the emphasis upon "natural

justice" and "fundamental laws" rather than upon the Constitutional

point.

[703] Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592.

[704] Terrett _vs._ Taylor.

[705] Farrar, 277; 65 N.H. 620; 4 Wheaton, 592.

[706] Farrar, 280; 65 N.H. 622. The two paragraphs containing these

statements of Webster are omitted in _Wheaton's Reports_.

[707] Farrar, 282-83; 65 N.H. 624; 4 Wheaton, 599.

[708] Brown, I, 516.

[709] _Ib._ 516-17. This scene, the movement and color of which grew in

dignity and vividness through the innumerable repetitions of it, caught

the popular fancy. Speeches, poems, articles, were written about the

incident. It became one of the chief sources from which the idolaters of

Webster drew endless adulation of that great man.

[710] See Brown, I, 517; Curtis, I, 169-71.

Chauncey Allen Goodrich was in his twenty-eighth year when he heard

Webster's argument. He was sixty-three when he gave Choate the

description which the latter made famous in his "Eulogy of Webster."

[711] Compare their arguments with Webster's. See Farrar 28-70; 104-61;

238-84.

[712] "Your notes I found to contain the whole matter. They saved me

great labor; but that was not the best part of their service; they put

me in the right path.... The only new aspect of the argument was

produced by going into cases to prove these ideas, which indeed lie at

the very bottom of your argument." (Webster to Smith, March 14, 1818,

_Priv. Corres._: Webster, I, 276-77; and see Webster to Mason, March 22,

1818, _ib._ 278.)

A year later, after the case had been decided, when the question of

publishing Farrar's _Report_ of all the arguments and opinions in the

Dartmouth College case was under consideration, Webster wrote Mason: "My

own interest would be promoted by _preventing_ the Book. I shall strut

well enough in the Washington Report, & if the 'Book' should not be

published, the world would not know where I borrowed my plumes--But I am

still inclined to have the Book--One reason is, that you & Judge Smith

may have the credit which belongs to you." (Webster to Mason, April 10,

1819, Van Tyne, 80.)

Farrar's _Report_ was published in August, 1819. It contains the

pleadings and special verdict, the arguments of counsel, opinions, and

the judgments in the State and National courts, together with valuable

appendices. The Farrar _Report_ is indispensable to those who wish to

understand this celebrated case from the purely legal point of view.

[713] Story to Mason, Oct. 6, 1819, Story, I, 323.

[714] Webster to Mason, April 28, 1818, _Priv. Corres._: Webster, I,

282-83. (Italics the author's.) In fact three such suits were brought

early in 1818 on the ground of diverse citizenship. (Shirley, 2-3.) Any

one of them would have enabled the Supreme Court to have passed on the

"general principles" of contract and government. These cases, had they

arrived on time, would have afforded Story his almost frantically

desired opportunity to declare that legislation violative of contracts

was against "natural right"--an opinion he fervently desired to give.

But the wiser Marshall saw in the case, as presented to the Supreme

Court on the contract guarantee of the Constitution, the occasion to

declare, in effect, that these same fundamental principles are embraced

in the contract clause of the written Constitution of the American

Nation.

[715] Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I,

275.

"Every body was grinning at the folly he uttered. Bell could not stand

it. He seized his hat and went off." (Webster to Smith, March 14, 1818,

_ib._ 277; and see Webster to Brown, March 11, 1818, Van Tyne, 75-76.)

Holmes "has attempted as a politician ... such a desire to be admired by

_everybody_, that he has ceased for weeks to be regarded by

_anybody_.... In the Dartmouth College Cause, he sunk lower at the bar

than he had in the Hall of Legislature." (Daggett to Mason, March 18,

1818, Hillard: _Memoir and Correspondence of Jeremiah Mason_, 199.)

The contempt of the legal profession for Holmes is shown by the fact

that in Farrar's _Report_ but four and one half pages are given to his

argument, while those of all other counsel for Woodward (Sullivan and

Bartlett in the State court and Wirt in the Supreme Court) are published

in full.

[716] "He made an apology for himself, that he had not had time to study

the case, and had hardly thought of it, till it was called on." (Webster

to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275-76.)

[717] "Before he concluded he became so exhausted ... that he was

obliged to request the Court to indulge him until the next day."

(_Boston Daily Advertiser_, March 23, 1818.)

"Wirt ... argues a good cause well. In this case he said more

nonsensical things than became him." (Webster to Smith, March 14, 1818,

_Priv. Corres._: Webster, I, 277.)

[718] Hopkinson wrote this anthem when Marshall returned from France.

(See vol. II, 343, of this work.)

[719] This description of Hopkinson is from Philadelphia according to

traditions gathered by the author.

[720] Choate says that Webster called to his aid "the ripe and beautiful

culture of Hopkinson." (Brown, I, 514.)

[721] The same was true of Hopkinson's argument for Chase. (See vol.

III, chap. IV, of this work.)

[722] Webster to Brown, March 11, 1818, Van Tyne, 75-76.

After Hopkinson's argument Webster wrote Brown: "Mr. Hopkinson

understood every part of the cause, and in his argument did it great

justice." (Webster to Brown, March 13, 1818, _Priv. Corres._: Webster,

I, 274; and see Webster to Mason, March 13, 1818, _ib._ 275-76.)

"Mr. Hopkinson closed the cause for the College with great ability, and

in a manner which gave perfect satisfaction and delight to all who heard

him." (_Boston Daily Advertiser_, March 23, 1818.)

It was expected that the combined fees of Webster and Hopkinson would be

$1000, "not an unreasonable compensation." (Marsh to Brown, Nov. 22,

1817, Lord, 139.) Hopkinson was paid $500. (Brown to Hopkinson, May 4,

1819, Hopkinson MSS.)

At their first meeting after the decision, the Trustees, "feeling the

inadequacy" of the fees of all the lawyers for the College, asked Mason,

Smith, Webster, and Hopkinson to sit for their portraits by Gilbert

Stuart, the artist to be paid by the Trustees. (Shattuck to Hopkinson,

Jan. 4, 1835, enclosing resolution of the Trustees, April 4, 1819,

attested by Miles Olcott, secretary, Hopkinson MSS.; also, Webster to

Hopkinson, May 9, 1819, _ib._)

[723] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I,

577.

[724] Many supposed that Story was undecided, perhaps opposed to the

College. In fact, he was as decided as Marshall. (See _infra_, 257-58,

275 and footnote.)

[725] Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I,

577.

[726] For example, William Wirt, Monroe's Attorney-General, in urging

the appointment of Kent, partisan Federalist though he was, to the

Supreme Bench to succeed Justice Livingston, who died March 19, 1823,

wrote that "Kent holds so lofty a stand everywhere for almost matchless

intellect and learning, as well as for spotless purity and high-minded

honor and patriotism, that I firmly believe the nation at large would

approve and applaud the appointment." (Wirt to Monroe, May 5, 1823,

Kennedy, II, 153.)

[727] Kent to Marsh, Aug. 26, 1818, Shirley, 263. Moreover, in 1804,

Kent, as a member of the New York Council of Revision, had held that

"charters of incorporation containing grants of personal and municipal

privileges were not to be essentially affected without the consent of

the parties concerned." (Record of Board, as quoted in _ib._ 254.)

[728] Shirley, 253. Shirley says that Kent "agreed to draw up an opinion

for Johnson in this case."

[729] Webster to Story, Sept. 9, 1818, _Priv. Corres._: Webster, I, 287.

[730] Lord, 143.

[731] "The folks in this region are frightened.... It is ascertained

that Judge Story ... is the original framer of the law.... They suppose

that on this account the cause is hopeless before the Sup. Ct. of U.S.

This is, however, report." (Murdock to Brown, Dec. 27, 1817, _ib._ 142.)

Murdock mentions Pickering as one of those who believed the rumors about

Story. This explains much. The soured old Federalist was an incessant

gossip and an indefatigable purveyor of rumors concerning any one he did

not like, provided the reports were bad enough for him to repeat. He

himself would, with great facility, apply the black, if the canvas were

capable of receiving it; and he could not forget that Story, when a

young man, had been a Republican.

[732] Hopkinson to Marsh, Dec. 31, 1817, Shirley, 274-75.

[733] This is principally the work of John M. Shirley in his book

_Dartmouth College Causes and the Supreme Court of the United States_.

The volume is crammed with the results of extensive research, strange

conglomeration of facts, suppositions, inferences, and insinuations, so

inextricably mingled that it is with the utmost difficulty that the

painstaking student can find his way.

Shirley leaves the impression that Justices Johnson and Livingston were

improperly worked upon because they consulted Chancellor Kent. Yet the

only ground for this is that Judge Marsh sent Webster's argument to

Kent, who was Marsh's intimate friend; and that the Reverend Francis

Brown, President of Dartmouth, went to see Kent, reported that his

opinion was favorable to the College, and that the effect of this would

be good upon Johnson and Livingston.

From the mere rumor, wholly without justification, that Story was at

first against the College--indeed, had drawn the College Acts (for so

the rumor grew, as rumors always grow)--Shirley would have us believe,

without any evidence whatever, that some improper influence was exerted

over Story.

Because Webster said that there was something "left out" of the report

of his argument, Shirley declares that for a whole hour Webster spoke as

a Federalist partisan in order to influence Marshall. (Shirley, 237.)

But such an attempt would have been resented by every Republican member

of the court and, most of all, by Marshall himself. Moreover, Marshall

needed no such persuasion, nor, indeed, persuasion of any kind. His

former opinions showed where he stood; so did the views which he had

openly and constantly avowed since he was a member of the Virginia House

of Burgesses in 1783. The something "left out" of Webster's reported

argument was, of course, his extemporaneous and emotional peroration

described by Goodrich.

These are only a very few instances of Shirley's assumptions. Yet,

because of the mass of data his book contains, and because of the

impossibility of getting out of them a connected narrative without the

most laborious and time-consuming examination, together with the

atmosphere of wrongdoing with which Shirley manages to surround the

harried reader, his volume has had a strong and erroneous effect upon

general opinion.

[734] Hopkinson to Webster, Nov. 17, 1818, _Priv. Corres._: Webster, I,

288-89. "I suppose he expects to do something very extraordinary in it,

as he says Mr. Wirt 'was not strong enough for it, has not back

enough.'" (_Ib._ 289.)

[735] Both Hopkinson and Webster resolved to prevent Pinkney from making

his anticipated argument. (_Ib._)

[736] Not only did Pinkney master the law of the case, but, in order to

have at his command every practical detail of the controversy, he kept

Cyrus Perkins, who succeeded Woodward, deceased, as Secretary of the

University Trustees, under continuous examination for an entire week.

Perkins knew every possible fact about the College controversy and

submitted to Pinkney the whole history of the dispute and also all

documents that could illuminate the subject. "Dr. Perkins had been a

week at Baltimore, conferring with Mr. Pinkney." (Webster to Mason, Feb.

4, 1819, Hillard, 213; and see Shirley, 203.)

[737] This fact was unknown to anybody but the Justices themselves. "No

public or general opinion seems to be formed of the opinion of any

particular judge." (Webster to Brown, Jan. 10, 1819, _Priv. Corres._:

Webster, I, 299.)

[738] "On Tuesday morning, he [Pinkney] being in court, as soon as the

judges had taken their seats, the Chief Justice said that in vacation

the judges had formed opinions in the College case. He then immediately

began reading his opinion, and, of course, nothing was said of a second

argument." (Webster to Mason, Feb. 4, 1819, Hillard, 213.)

[739] 4 Wheaton, 625.

[740] _Ib._ 626-27.

[741] 4 Wheaton, 627.

[742] _Ib._ 627-28.

[743] 4 Wheaton, 629-30.

[744] _Ib._ 630.

[745] _Ib._ 631-34. The statement of facts and of the questions growing

out of them was by far the best work Marshall did. In these statements

he is as brief, clear, and pointed as, in his arguments, he is prolix,

diffuse, and repetitious.

[746] _Ib._ 634.

[747] 4 Wheaton, 635-36.

[748] _Ib._ 636.

[749] 4 Wheaton, 637.

[750] 4 Wheaton, 638-39.

[751] _Ib._ 639-40.

[752] 4 Wheaton, 640-41.

[753] _Ib._ 641.

[754] _Ib._ 642-43.

[755] 4 Wheaton, 643.

[756] 4 Wheaton, 644.

[757] 4 Wheaton. 645.

[758] _Ib._ 646-47.

[759] 4 Wheaton, 647-48.

[760] _Ib._ 650.

[761] _Ib._ 651.

[762] 4 Wheaton, 652-53.

[763] _Ib._ 654.

[764] Webster "in court" to his brother, Feb. 2, 1819, _Priv. Corres._

Webster, I, 300.

[765] Webster to Brown, Feb. 2, 1819, _ib._

[766] Webster to Mason, Feb. 4, 1819, Hillard, 213-14. Webster adds:

"Some of the other judges, I am told, have drawn opinions with more

reference to authorities." (_Ib._ 214.)

[767] Hopkinson to Brown, Feb. 2, 1819, _Priv. Corres._: Webster, I,

301.

[768] Webster to Mason, April 13, 1819, Hillard, 223.

[769] Marshall to Story, May 27, 1819, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 324-25.

[770] 4 Wheaton, 666-713.

[771] Livingston to Story, Jan. 24, 1819, Story, I, 323. This important

letter discredits the rumor that Story at first thought the College Acts

valid.

Story sent copies of his opinion to eminent men other than his

associates on the Supreme Bench, among them William Prescott, father of

the historian, a Boston lawyer highly esteemed by the leaders of the

American bar. "I have read your opinion with care and great pleasure,"

writes Prescott. "In my judgment it is supported by the principles of

our constitutions, and of all free governments, as well as by the

authority of adjudged cases. As one of the public, I thank you for

establishing a doctrine affecting so many valuable rights and interests,

with such clearness and cogency of argument, and weight of authority as

must in all probability prevent its ever being again disturbed, I see

nothing I should wish altered in it. I hope it will be adopted without

diminution or subtraction. You have placed the subject in some strong,

and to me, new lights, although I had settled my opinion on the general

question years ago." (Prescott to Story, Jan. 9, 1819, _ib._ 324.)

[772] For instance, the watchful Niles does not even mention it in his

all-seeing and all-recording _Register_. Also see Warren, 377.

[773] _North American Review_ (1820), X, 83.

[774] Fiske: _Essays, Historical and Literary_, I, 379.

[775] Maine: _Popular Government_, 248.

[776] Story to Kent, Aug. 21, 1819, Story, I, 331.

[777] See Cooley: _Constitutional Limitations_ (6th ed.), footnote to

335.

[778] Butchers' Union, etc. _vs._ Crescent City, etc. 111 U.S. 750.

[779] Beer Company _vs._ Massachusetts, 97 U.S. 25; and see Fertilizing

Co. _vs._ Hyde Park, _ib._ 659.

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

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

[782] Pearsall _vs._ Great Northern Railway, 161 U.S. 660.

[783] More has been written of Marshall's opinion in this case than of

any other delivered by him except that in Marbury _vs._ Madison.

For recent discussions of the subject see Russell: "Status and

Tendencies of the Dartmouth College Case," _Am. Law Rev._ XXX, 322-56,

an able, scholarly, and moderate paper; Doe: "A New View of the

Dartmouth College Case," _Harvard Law Review_, VI, 161-81, a novel and

well-reasoned article; Trickett: "The Dartmouth College Paralogism,"

_North American Review_, XL, 175-87, a vigorous radical essay; Hall:

"The Dartmouth College Case," _Green Bag_, XX, 244-47, a short but

brilliant attack upon the assailants of Marshall's opinion; Jenkins:

"Should the Dartmouth College Decision be Recalled," _Am. Law Rev._ LI,

711-51, a bright, informed, and thorough treatment from the extremely

liberal point of view. A calm, balanced, and convincing review of the

effect of the Dartmouth decision on American economic and social life is

that of Professor Edward S. Corwin in his _Marshall and the

Constitution_, 167-72. When reading these comments, however, the student

should, at the same time, carefully reëxamine Marshall's opinion.

CHAPTER VI

VITALIZING THE CONSTITUTION

The crisis is one which portends destruction to the liberties of

the American people. (Spencer Roane.)

The constitutional government of this republican empire cannot

be practically enforced but by a fair and liberal interpretation

of its powers. (William Pinkney.)

The Judiciary of the United States is the subtle corps of

sappers and miners constantly working under ground to undermine

the foundations of our confederated fabric. (Jefferson.)

The government of the Union is emphatically and truly a

government of the people. In form and substance it emanates from

them. Its powers are granted by them, and are to be exercised

directly on them and for their benefit. (Marshall.)

Although it was the third of the great causes to be decided by the

Supreme Court in the memorable year, 1819, M'Culloch _vs._ Maryland was

the first in importance and in the place it holds in the development of

the American Constitution. Furthermore, in his opinion in this case John

Marshall rose to the loftiest heights of judicial statesmanship. If his

fame rested solely on this one effort, it would be secure.

To comprehend the full import of Marshall's opinion in this case, the

reader must consider the state of the country as described in the fourth

chapter of this volume. While none of his expositions of our fundamental

law, delivered in the critical epoch from 1819 to 1824, can be entirely

understood without knowledge of the National conditions that produced

them, this fact must be especially borne in mind when reviewing the case

of M'Culloch _vs._ Maryland.

[Illustration: Associate Justices sitting with Marshall in the case of

M'Culloch _versus_ Maryland: STORY, JOHNSON, WASHINGTON, DUVAL,

LIVINGSTON, TODD]

Like most of the controversies in which Marshall's Constitutional

opinions were pronounced, M'Culloch _vs._ Maryland came before the

Supreme Court on an agreed case. The facts were that Congress had

authorized the incorporation of the second Bank of the United States;

that this institution had instituted a branch at Baltimore; that the

Legislature of Maryland had passed an act requiring all banks,

established "without authority from the state," to issue notes only on

stamped paper and only of certain denominations, or, in lieu of these

requirements, only upon the payment of an annual tax of fifteen thousand

dollars; that, in violation of this law, the Baltimore branch of the

National Bank continued to issue its notes on unstamped paper without

paying the tax; and that on May 8, 1818, John James, "Treasurer of the

Western Shore," had sued James William M'Culloch, the cashier of the

Baltimore branch, for the recovery of the penalties prescribed by the

Maryland statute.[784]

The immediate question was whether the Maryland law was Constitutional;

but the basic issue was the supremacy of the National Government as

against the dominance of State Governments. Indeed, the decision of this

case involved the very existence of the Constitution as an "ordinance of

Nationality," as Marshall so accurately termed it.

At no time in this notable session of the Supreme Court was the

basement room, where its sittings were now again held, so thronged with

auditors as it was when the argument in M'Culloch _vs._ Maryland took

place. "We have had a crowded audience of ladies and gentlemen," writes

Story toward the close of the nine days of discussion. "The hall was

full almost to suffocation, and many went away for want of room."[785]

Webster opened the case for the Bank. His masterful argument in the

Dartmouth College case the year before had established his reputation as

a great Constitutional lawyer as well as an orator of the first class.

He was attired in the height of fashion, tight breeches, blue cloth

coat, cut away squarely at the waist, and adorned with large brass

buttons, waist-coat exposing a broad expanse of ruffled shirt with high

soft collar surrounded by an elaborate black stock.[786]

The senior counsel for the Bank was William Pinkney. He was dressed with

his accustomed foppish elegance, and, as usual, was nervous and

impatient. Notwithstanding his eccentricities, he was Webster's equal,

if not his superior, except in physical presence and the gift of

political management. With Webster and Pinkney was William Wirt, then

Attorney-General of the United States, who had arrived at the fullness

of his powers.

Maryland was represented by Luther Martin, still Attorney-General for

that State, then seventy-five years old, but a strong lawyer despite

his half-century, at least, of excessive drinking. By his side was

Joseph Hopkinson of Philadelphia, now fifty years of age, one of the

most learned men at the American bar. With Martin and Hopkinson was

Walter Jones of Washington, who appears to have been a legal genius, his

fame obliterated by devotion to his profession and unaided by any public

service, which so greatly helps to give permanency to the lawyer's

reputation. All told, the counsel for both sides in M'Culloch _vs._

Maryland were the most eminent and distinguished in the Republic.

Webster said in opening that Hamilton had "exhausted" the arguments for

the power of Congress to charter a bank and that Hamilton's principles

had long been acted upon. After thirty years of acquiescence it was too

late to deny that the National Legislature could establish a bank.[787]

With meticulous care Webster went over Hamilton's reasoning to prove

that Congress can "pass all laws 'necessary and proper' to carry into

execution powers conferred on it."[788]

Assuming the law which established the Bank to be Constitutional,

could Maryland tax a branch of that Bank? If the State could tax the

Bank at all, she could put it out of existence, since a "power to tax

involves ... a power to destroy"[789]--words that Marshall, in

delivering his opinion, repeated as his own. The truth was, said

Webster, that, in taxing the Baltimore branch of the National Bank,

Maryland taxed the National Government itself.[790]

Joseph Hopkinson, as usual, made a superb argument--a performance all

the more admirable as an intellectual feat in that, as an advocate for

Maryland, his convictions were opposed to his reasoning.[791] Walter

Jones was as thorough as he was lively, but he did little more than to

reinforce the well-nigh perfect argument of Hopkinson.[792] On the same

side the address of Luther Martin deserves notice as the last worthy of

remark which that great lawyer ever made. Old as he was, and wasted as

were his astonishing powers, his argument was not much inferior to those

of Webster, Hopkinson, and Pinkney. Martin showed by historical evidence

that the power now claimed for Congress was suspected by the opponents

of the Constitution, but denied by its supporters and called "a dream of

distempered jealousy." So came the Tenth Amendment; yet, said Martin,

now, "we are asked to engraft upon it [the Constitution] powers ...

which were disclaimed by them [the advocates of the Constitution], and

which, if they had been fairly avowed at the time, would have prevented

its adoption."[793]

Could powers of Congress be inferred as a necessary means to the desired

end? Why, then, did the Constitution _expressly_ confer powers which, of

necessity, must be implied? For instance, the power to declare war

surely implied the power to raise armies; and yet that very power was

granted in specific terms. But the power to create corporations "is not

expressly delegated, either as an end or a means of national

government."[794]

When Martin finished, William Pinkney, whom Marshall declared to be "the

greatest man he had ever seen in a Court of justice,"[795] rose to make

what proved to be the last but one of the great arguments of that

unrivaled leader of the American bar of his period. To reproduce his

address is to set out in advance the opinion of John Marshall stripped

of Pinkney's rhetoric which, in that day, was deemed to be the

perfection of eloquence.[796]

For three days Pinkney spoke. Few arguments ever made in the Supreme

Court affected so profoundly the members of that tribunal. Story

describes the argument thus: "Mr. Pinkney rose on Monday to conclude the

argument; he spoke all that day and yesterday, and will probably

conclude to-day. I never, in my whole life, heard a greater speech; it

was worth a journey from Salem to hear it; his elocution was excessively

vehement, but his eloquence was overwhelming. His language, his style,

his figures, his arguments, were most brilliant and sparkling. He spoke

like a great statesman and patriot, and a sound constitutional lawyer.

All the cobwebs of sophistry and metaphysics about State rights and

State sovereignty he brushed away with a mighty besom."[797]

Indeed, all the lawyers in this memorable contest appear to have

surpassed their previous efforts at the bar. Marshall, in his opinion,

pays this tribute to all their addresses: "Both in maintaining the

affirmative and the negative, a splendor of eloquence, and strength of

argument seldom, if ever, surpassed, have been displayed."[798]

After he had spoken, Webster, who at that moment was intent on the

decision of the Dartmouth College case,[799] became impatient. "Our Bank

argument goes on--& threatens to be long," he writes Jeremiah

Mason.[800] Four days later, while Martin was still talking, Webster

informs Jeremiah Smith: "We are not yet thro. the Bank question. Martin

has been _talking 3 ds_. Pinkney replies tomorrow & that finishes--I set

out for home next day."[801] The arguments in M'Culloch _vs._ Maryland

occupied nine days.[802]

Four days before the Bank argument opened in the Supreme Court, the

House took up the resolution offered by James Johnson of Virginia to

repeal the Bank's charter.[803] The debate over this proposal continued

until February 25, the third day of the argument in M'Culloch _vs._

Maryland. How, asked Johnson, had the Bank fulfilled expectations and

promises? "What ... is our condition? Surrounded by one universal gloom.

We are met by the tears of the widow and the orphan."[804] Madison has

"cast a shade" on his reputation by signing the Bank Bill--that "act of

usurpation." Under the common law the charter "is forfeited."[805]

The Bank is a "mighty corporation," created "to overawe ... the local

institutions, that had dealt themselves almost out of breath in

supporting the Government in times of peril and adversity." The

financial part of the Virginia Republican Party organization thus spoke

through James Pindall of that State.[806]

William Lowndes of South Carolina brilliantly defended the Bank, but

admitted that its "early operation" had been "injudicious."[807] John

Tyler of Virginia assailed the Bank with notable force. "This charter

has been violated," he said; "if subjected to investigation before a

court of justice, it will be declared null and void."[808] David Walker

of Kentucky declared that the Bank "is an engine of favoritism--of stock

jobbing"--a machine for "binding in adamantine chains the blessed,

innocent lambs of America to accursed, corrupt European tigers."[809] In

spite of all this eloquence, Johnson's resolution was defeated, and the

fate of the Bank left in the hands of the Supreme Court.

On March 6, 1819, before a few spectators, mostly lawyers with business

before the court, Marshall read his opinion. It is the misfortune of the

biographer that only an abstract can be given of this epochal state

paper--among the very first of the greatest judicial utterances of all

time.[810] It was delivered only three days after Pinkney concluded his

superb address.

Since it is one of the longest of Marshall's opinions and, by general

agreement, is considered to be his ablest and most carefully prepared

exposition of the Constitution, it seems not unlikely that much of it

had been written before the argument. The court was very busy every day

of the session and there was little, if any, time for Marshall to write

this elaborate document. The suit against M'Culloch had been brought

nearly a year before the Supreme Court convened; Marshall undoubtedly

learned of it through the newspapers; he was intimately familiar with

the basic issue presented by the litigation; and he had ample time to

formulate and even to write out his views before the ensuing session of

the court. He had, in the opinions of Hamilton and Jefferson,[811] the

reasoning on both sides of this fundamental controversy. It appears to

be reasonably probable that at least the framework of the opinion in

M'Culloch _vs._ Maryland was prepared by Marshall when in Richmond

during the summer, autumn, and winter of 1818-19.

The opening words of Marshall are majestic: "A sovereign state denies

the obligation of a law ... of the Union.... The constitution of our

country, in its most ... vital parts, is to be considered; the

conflicting powers of the government of the Union and of its

members, ... are to be discussed; and an opinion given, which may

essentially influence the great operations of the government."[812] He

cannot "approach such a question without a deep sense of ... the awful

responsibility involved in its decision. But it must be decided

peacefully, or remain a source of hostile legislation, perhaps of

_hostility of a still more serious nature_."[813] In these solemn words

the Chief Justice reveals the fateful issue which M'Culloch _vs._

Maryland foreboded.

That Congress has power to charter a bank is not "an open question....

The principle ... was introduced at a very early period of our history,

has been recognized by many successive legislatures, and has been acted

upon by the judicial department ... as a law of undoubted obligation....

An exposition of the constitution, deliberately established by

legislative acts, on the faith of which an immense property has been

advanced, ought not to be lightly disregarded."

The first Congress passed the act to incorporate a National bank. The

whole subject was at the time debated exhaustively. "The bill for

incorporating the bank of the United States did not steal upon an

unsuspecting legislature, & pass unobserved," says Marshall. Moreover,

it had been carefully examined with "persevering talent" in Washington's

Cabinet. When that act expired, "a short experience of the

embarrassments" suffered by the country "induced the passage of the

present law." He must be intrepid, indeed, who asserts that "a measure

adopted under these circumstances was a bold and plain usurpation, to

which the constitution gave no countenance."[814]

But Marshall examines the question as though it were "entirely new"; and

gives an historical account of the Constitution which, for clearness and

brevity, never has been surpassed.[815] Thus he proves that "the

government proceeds directly from the people; ... their act was final.

It required not the affirmance, and could not be negatived, by the state

governments. The constitution when thus adopted ... bound the state

sovereignties." The States could and did establish "a league, such as

was the confederation.... But when, 'in order to form a more perfect

union,' it was deemed necessary to change this alliance into an

effective government, ... acting directly on the people," it was the

people themselves who acted and established a fundamental law for their

government.[816]

The Government of the American Nation is, then, "emphatically, and

truly, a government of the people. In form and in substance it emanates

from them. Its powers are granted by them, and are to be exercised

directly on them, and for their benefit"[817]--a statement, the grandeur

of which was to be enhanced forty-four years later, when, standing on

the battle-field of Gettysburg, Abraham Lincoln said that "a government

of the people, by the people, for the people, shall not perish from the

earth."[818]

To be sure, the States, as well as the Nation, have certain powers, and

therefore "the supremacy of their respective laws, when they are in

opposition, must be settled." Marshall proceeds to settle that basic

question. The National Government, he begins, "is supreme within its

sphere of action. This would seem to result necessarily from its

nature." For "it is the government of all; its powers are delegated by

all; it represents all, and acts for all. Though any one state may be

willing to control its operations, no state is willing to allow others

to control them. The nation, on those subjects on which it can act, must

necessarily bind its component parts." Plain as this truth is, the

people have not left the demonstration of it to "mere reason"--for they

have, "in express terms, decided it by saying" that the Constitution,

and the laws of the United States which shall be made in pursuance

thereof, "shall be the supreme law of the land," and by requiring all

State officers and legislators to "take the oath of fidelity to

it."[819]

The fact that the powers of the National Government enumerated in the

Constitution do not include that of creating corporations does not

prevent Congress from doing so. "There is no phrase in the instrument

which, like the articles of confederation, _excludes_ incidental or

implied powers; and which requires that everything granted shall be

expressly and minutely described.... A constitution, to contain an

accurate detail of all the subdivisions of which its great powers will

admit, and of all the means by which they may be carried into execution,

would partake of a prolixity of a legal code, and could scarcely be

embraced by the human mind. It would probably never be understood by the

public."

The very "nature" of a constitution, "therefore requires, that only its

great outlines should be marked, its important objects designated, and

the minor ingredients which compose those _objects be deduced from the

nature of the objects themselves_." In deciding such questions "we must

never forget," reiterates Marshall, "that it is a _constitution_ we are

expounding."[820]

This being true, the power of Congress to establish a bank is

undeniable--it flows from "the great powers to lay and collect taxes; to

borrow money; to regulate commerce; to declare and conduct a war; and to

raise and support armies and navies." Consider, he continues, the scope

of the duties of the National Government: "The sword and the purse, all

the external relations, and no inconsiderable portion of the industry of

the nation, are entrusted to its government.... A government, entrusted

with such ample powers, on the due execution of which the happiness and

prosperity of the nation so vitally depends, must also be entrusted with

ample means for their execution. The power being given, it is the

interest of the nation to facilitate its execution. It can never be

their interest, and cannot be presumed to have been their intention, to

clog and embarrass its execution by withholding the most appropriate

means."[821]

At this point Marshall's language becomes as exalted as that of the

prophets: "Throughout this vast republic, from the St. Croix to the Gulf

of Mexico, from the Atlantic to the Pacific, revenue is to be collected

and expended, armies are to be marched and supported. The exigencies of

the nation may require that the treasure raised in the north should be

transported to the south, that raised in the east conveyed to the west,

or that this order should be reversed." Here Marshall the soldier is

speaking. There is in his words the blast of the bugle of Valley Forge.

Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was

fashioned in the army of the Revolution.[822]

The Chief Justice continues: "Is that construction of the constitution

to be preferred which would render these operations difficult,

hazardous, and expensive?" Did the framers of the Constitution "when

granting these powers for the public good" intend to impede "their

exercise by withholding a choice of means?" No! The Constitution "does

not profess to enumerate the means by which the powers it confers may be

executed; nor does it prohibit the creation of a corporation, if the

existence of such a being be essential to the beneficial exercise of

those powers."[823]

Resorting to his favorite method in argument, that of repetition,

Marshall again asserts that the fact that "the power of creating a

corporation is one appertaining to sovereignty and is not expressly

conferred on Congress," does not take that power from Congress. If it

does, Congress, by the same reasoning, would be denied the power to pass

most laws; since "all legislative powers appertain to sovereignty." They

who say that Congress may not select "any appropriate means" to carry

out its admitted powers, "take upon themselves the burden of

establishing that exception."[824]

The establishment of the National Bank was a means to an end; the power

to incorporate it is "as incidental" to the great, substantive, and

independent powers expressly conferred on Congress as that of making

war, levying taxes, or regulating commerce.[825] This is not only the

plain conclusion of reason, but the clear language of the Constitution

itself as expressed in the "necessary and proper" clause[826] of that

instrument. Marshall treats with something like contempt the argument

that this clause does not mean what it says, but is "really restrictive

of the general right, which might otherwise be implied, of selecting

means for executing the enumerated powers"--a denial, in short, that,

without this clause, Congress is authorized to make laws.[827] After

conferring on Congress all legislative power, "after allowing each house

to prescribe its own course of proceeding, after describing the manner

in which a bill should become a law, would it have entered into the

mind ... of the convention that an express power to make laws was

necessary to enable the legislature to make them?"[828]

In answering the old Jeffersonian argument that,[829] under the

"necessary and proper" clause, Congress can adopt only those means

absolutely "necessary" to the execution of express powers, Marshall

devotes an amount of space which now seems extravagant. But in 1819 the

question was unsettled and acute; indeed, the Republicans had again made

it a political issue. The Chief Justice repeats the arguments made by

Hamilton in his opinion to Washington on the first Bank Bill.[830]

Some words have various shades of meaning, of which courts must select

that justified by "common usage." "The word 'necessary' is of this

description.... It admits of all degrees of comparison.... A thing may

be necessary, very necessary, absolutely or indispensably necessary."

For instance, the Constitution itself prohibits a State from "laying

'imposts or duties on imports or exports, except what may be

_absolutely_ necessary for executing its inspection laws'"; whereas it

authorizes Congress to "'make all laws which shall be necessary and

proper'" for the execution of powers expressly conferred.[831]

Did the framers of the Constitution intend to forbid Congress to employ

"_any_" means "which might be appropriate, and which were conducive to

the end"? Most assuredly not! "The subject is the execution of those

great powers on which the welfare of a nation essentially depends." The

"necessary and proper" clause is found "in a constitution intended to

endure for ages to come, and, consequently, to be adapted to the various

crises of human affairs.... To have declared that the best means shall

not be used, but those alone without which the power given would be

nugatory, would have been to deprive the legislature of the capacity to

avail itself of experience, to exercise its reason, and to accommodate

its legislation to circumstances."[832]

The contrary conclusion is tinged with "insanity." Whence comes the

power of Congress to prescribe punishment for violations of National

laws? No such general power is expressly given by the Constitution. Yet

nobody denies that Congress has this general power, although "it is

expressly given in some cases," such as counterfeiting, piracy, and

"offenses against the law of nations." Nevertheless, the specific

authorization to provide for the punishment of these crimes does not

prevent Congress from doing the same as to crimes not specified.[833]

Now comes an example of Marshall's reasoning when at his best--and

briefest.

"Take, for example, the power 'to establish post-offices and

post-roads.' This power is executed by the single act of making the

establishment. But, from this has been inferred the power and duty of

carrying the mail along the post-road, from one post-office to another.

And, from this implied power, has again been inferred the right to

punish those who steal letters from the post-office, or rob the mail. It

may be said, with some plausibility, that the right to carry the mail,

and to punish those who rob it, is not indispensably necessary to the

establishment of a post-office and post-road. This right is indeed

essential to the beneficial exercise of the power, but not

indispensably necessary to its existence. So, of the punishment of the

crimes of stealing or falsifying a record or process of a court of the

United States, or of perjury in such court. To punish these offenses is

certainly conducive to the due administration of justice. But courts may

exist, and may decide the causes brought before them, though such crimes

escape punishment.

"The baneful influence of this narrow construction on all the operations

of the government, and the absolute impracticability of maintaining it

without rendering the government incompetent to its great objects, might

be illustrated by numerous examples drawn from the constitution, and

from our laws. The good sense of the public has pronounced, without

hesitation, that the power of punishment appertains to sovereignty, and

may be exercised whenever the sovereign has a right to act, as

incidental to his constitutional powers. It is a means for carrying into

execution all sovereign powers, and may be used, although not

indispensably necessary. It is a right incidental to the power, and

conducive to its beneficial exercise."[834]

To attempt to prove that Congress _might_ execute its powers without the

use of other means than those absolutely necessary would be "to waste

time and argument," and "not much less idle than to hold a lighted taper

to the sun." It is futile to speculate upon imaginary reasons for the

"necessary and proper" clause, since its purpose is obvious. It "is

placed among the powers of Congress, not among the limitations on those

powers. Its terms purport to enlarge, not to diminish the powers vested

in the government.... If no other motive for its insertion can be

suggested, a sufficient one is found in the desire to remove all doubts

respecting the right to legislate on the vast mass of incidental powers

which must be involved in the constitution, if that instrument be not a

splendid bauble."[835]

Marshall thus reaches the conclusion that Congress may "perform the high

duties assigned to it, in the manner most beneficial to the people."

Then comes that celebrated passage--one of the most famous ever

delivered by a jurist: "Let the end be legitimate, let it be within

the scope of the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not prohibited,

but consist with the letter and spirit of the constitution, are

constitutional."[836]

Further on the Chief Justice restates this fundamental principle,

without which the Constitution would be a lifeless thing: "Where the law

is not prohibited, and is really calculated to effect any of the objects

entrusted to the government, to undertake here to inquire into the

degree of its necessity, would be to pass the line which circumscribes

the judicial department, and to tread on legislative ground. The court

disclaims all pretensions to such a power."[837]

The fact that there were State banks with whose business the National

Bank might interfere, had nothing to do with the question of the power

of Congress to establish the latter. The National Government does not

depend on State Governments "for the execution of the great powers

assigned to it. Its means are adequate to its ends." It can choose a

National bank rather than State banks as an agency for the transaction

of its business; "and Congress alone can make the election."

It is, then, "the unanimous and decided opinion" of the court that the

Bank Act is Constitutional. So is the establishment of the branches of

the parent bank. Can States tax these branches, as Maryland has tried to

do? Of course the power of taxation "is retained by the states," and "is

not abridged by the grant of a similar power to the government of the

Union." These are "truths which have never been denied."

With sublime audacity Marshall then declares that "such is the paramount

character of the constitution that its capacity to withdraw any subject

from the action of even this power, is admitted."[838] This assertion

fairly overwhelms the student, since the States then attempting to tax

out of existence the branches of the National Bank did not admit, but

emphatically denied, that the National Government could withdraw from

State taxation any taxable subject whatever, except that which the

Constitution itself specifically withdraws.

"The States," argues Marshall, "are expressly forbidden" to tax imports

and exports. This being so, "the same paramount character would seem to

restrain, as it certainly may restrain, a state from such other

exercise of this [taxing] power, as is in its nature incompatible with,

and repugnant to, the constitutional laws of the Union. A law,

absolutely repugnant to another, as entirely repeals that other as if

express terms of repeal were used."

In this fashion Marshall holds, in effect, that Congress can restrain

the States from taxing certain subjects not mentioned in the

Constitution as fully as though those subjects were expressly named.

It is on this ground that the National Bank claims exemption "from the

power of a state to tax its operations." Marshall concedes that "there

is no express provision [in the Constitution] for the case, but the

claim has been sustained on a principle which so entirely pervades the

constitution, is so intermixed with the materials which compose it, so

interwoven with its web, so blended with its texture, as to be incapable

of being separated from it without rendering it into shreds."[839]

This was, indeed, going far--the powers of Congress placed on "a

principle" rather than on the language of the Constitution. When we

consider the period in which this opinion was given to the country, we

can understand--though only vaguely at this distance of time--the daring

of John Marshall. Yet he realizes the extreme radicalism of the theory

of Constitutional interpretation he is thus advancing, and explains it

with scrupulous care.

"This great principle is that the constitution and the laws made in

pursuance thereof are supreme; that they control the constitution and

laws of the respective states, and cannot be controlled by them. From

this, which may be almost termed an axiom, other propositions are

deduced as corollaries, on the truth or error of which ... the cause is

supposed to depend."[840]

That "cause" was not so much the one on the docket of the Supreme Court,

entitled M'Culloch _vs._ Maryland, as it was that standing on the docket

of fate entitled Nationalism _vs._ Localism. And, although Marshall did

not actually address them, everybody knew that he was speaking to the

disunionists who were increasing in numbers and boldness. Everybody

knew, also, that the Chief Justice was, in particular, replying to the

challenge of the Virginia Republican organization as given through the

Court of Appeals of that State.[841]

The corollaries which Marshall deduced from the principle of National

supremacy were: "1st. That a power to create implies a power to

preserve. 2d. That a power to destroy, if wielded by a different hand,

is hostile to, and incompatible with these powers to create and to

preserve. 3d. That where this repugnancy exists, that authority which is

supreme must control, not yield to that over which it is supreme."[842]

It is "too obvious to be denied," continues Marshall that, if permitted

to exercise the power, the States can tax the Bank "so as to destroy

it." The power of taxation is admittedly "sovereign"; but the taxing

power of the States "is subordinate to, and may be controlled by the

constitution of the United States. How far it has been controlled by

that instrument must be a question of construction. In making this

construction, no principle not declared can be admissible, which would

defeat the legitimate operations of a supreme government. It is of the

very essence of supremacy to remove all obstacles to its action within

its own sphere, and so to modify every power vested in subordinate

governments as to exempt its own operations from their own influence.

This effect need not be stated in terms. It is so involved in the

declaration of supremacy, so necessarily implied in it, that the

expression of it could not make it more certain. We must, therefore,

keep it [the principle of National supremacy] in view while construing

the constitution."[843]

Unlimited as is the power of a State to tax objects within its

jurisdiction, that State power does not "extend to those means which are

employed by Congress to carry into execution powers conferred on that

body by the people of the United States ... powers ... given ... to a

government whose laws ... are declared to be supreme.... The right never

existed [in the States] ... to tax the means employed by the government

of the Union, for the execution of its powers."[844]

Regardless of this fact, however, can States tax instrumentalities of

the National Government? It cannot be denied, says Marshall, that "the

power to tax involves the power to destroy; that the power to destroy

may defeat ... the power to create; that there is a plain repugnance, in

conferring on one government a power to control the constitutional

measures of another, which other, with respect to those very measures,

is declared to be supreme over that which exerts the control."[845]

Here Marshall permits himself the use of sarcasm, which he dearly loved

but seldom employed. The State Rights advocates insisted that the States

can be trusted not to abuse their powers--confidence must be reposed in

State Legislatures and officials; they would not destroy needlessly,

recklessly. "All inconsistencies are to be reconciled by the magic of

the word CONFIDENCE," says Marshall. "But," he continues, "is this a

case of 'confidence'? Would the people of any one state trust those of

another with a power to control the most insignificant operations of

their state government? We know they would not."

By the same token the people of one State would never consent that the

Government of another State should control the National Government "to

which they have confided the most important and most valuable interests.

In the legislature of the Union alone, are all represented. The

legislature of the Union alone, therefore, can be trusted by the people

with the power of controlling measures which concern all, in the

confidence that it will not be abused. This, then, is not a case of

confidence."[846]

The State Rights theory is "capable of arresting all the measures of the

government, and of prostrating it at the foot of the states." Instead of

the National Government being "supreme," as the Constitution declares it

to be, "supremacy" would be transferred "in fact, to the states"; for,

"if the states may tax one instrument, employed by the government in the

execution of its powers, they may tax any and every other instrument.

They may tax the mail; they may tax the mint; they may tax

patent-rights; they may tax the papers of the custom-house; they may tax

judicial process; they may tax all the means employed by the government,

to an excess which would defeat all the ends of government. This was not

intended by the American people. They did not design to make their

government dependent on the states."

The whole question is, avows Marshall, "in truth, a question of

supremacy." If the anti-National principle that the States can tax the

instrumentalities of the National Government is to be sustained, then

the declaration in the Constitution that it and laws made under it

"shall be the supreme law of the land, is empty and unmeaning

declamation."[847]

Maryland had argued that, since the taxing power is, at least,

"concurrent" in the State and National Governments, the States can tax a

National bank as fully as the Nation can tax State banks. But, remarks

Marshall, "the two cases are not on the same reason." The whole American

people and all the States are represented in Congress; when they tax

State banks, "they tax their constituents; and these taxes must be

uniform. But, when a state taxes the operations of the government of the

United States, it acts upon institutions created, not by their own

constituents, but by people over whom they claim no control. It acts

upon the measures of a government created by others as well as

themselves, for the benefit of others in common with themselves.

"The difference is that which always exists, and always must exist,

between the action of the whole on a part, and the action of a part on

the whole--between the laws of a government declared to be supreme, and

those of a government which, when in opposition to those laws, is not

supreme.... The states have no power, by taxation or otherwise, to

retard, impede, burden, or in any manner control the operations of the

constitutional laws enacted by Congress to carry into execution the

powers vested in the general government."[848]

For these reasons, therefore, the judgment of the Supreme Court was that

the Maryland law taxing the Baltimore branch of the National Bank was

"contrary to the constitution ... and void"; that the judgment of the

Baltimore County Court against the branch bank "be reversed and

annulled," and that the judgment of the Maryland Court of Appeals

affirming the judgment of the County Court also "be reversed and

annulled."[849]

In effect John Marshall thus rewrote the fundamental law of the Nation;

or, perhaps it may be more accurate to say that he made a written

instrument a living thing, capable of growth, capable of keeping pace

with the advancement of the American people and ministering to their

changing necessities. This greatest of Marshall's treatises on

government may well be entitled the "Vitality of the Constitution."

Story records that Marshall's opinion aroused great political

excitement;[850] and no wonder, since the Chief Justice announced, in

principle, that Congress had sufficient power to "emancipate every slave

in the United States" as John Randolph declared five years later.[851]

Roane, Ritchie, Taylor, and the Republican organization of Virginia had

anticipated that the Chief Justice would render a Nationalist opinion;

but they were not prepared for the bold and crushing blows which he

rained upon their fanatically cherished theory of Localism. As soon as

they recovered from their surprise and dismay, they opened fire from

their heaviest batteries upon Marshall and the National Judiciary. The

way was prepared for them by a preliminary bombardment in the _Weekly

Register_ of Hezekiah Niles.

This periodical had now become the most widely read and influential

publication in the country; it had subscribers from Portland to New

Orleans, from Savannah to Fort Dearborn. Niles had won the confidence of

his far-flung constituency by his honesty, courage, and ability. He was

the prototype of Horace Greeley, and the _Register_ had much the same

hold on its readers that the _Tribune_ came to have thirty years later.

In the first issue of the _Register_, after Marshall's opinion was

delivered, Niles began an attack upon it that was to spread all over the

land. "A deadly blow has been struck at the _sovereignty of the states_,

and from a quarter so far removed from the people as to be hardly

accessible to public opinion," he wrote. "The welfare of the union has

received a more dangerous wound than fifty _Hartford_ conventions ...

could inflict." Parts of Marshall's opinion are "_incomprehensible_. But

perhaps, as some people tell us of what _they_ call the _mysteries_ of

religion, the _common people_ are not to understand them, such things

being reserved only for the _priests_!!"[852]

The opinion of the Chief Justice was published in full in Niles's

_Register_ two weeks after he delivered it,[853] and was thus given

wider publicity than any judicial utterance previously rendered in

America. Indeed, no pronouncement of any court, except, perhaps, that in

Gibbons _vs._ Ogden,[854] was read so generally as Marshall's opinion in

M'Culloch _vs._ Maryland, until the publication of the Dred Scott

decision thirty-eight years later. Niles continues his attack in the

number of the _Register_ containing the Bank opinion:

It is "more important than any ever before pronounced by that exalted

tribunal--a tribunal so far removed from the people, that some seem to

regard it with a species of that awful reverence in which the

inhabitants of Asia look up to their princes."[855] This exasperated

sentence shows the change that Marshall, during his eighteen years on

the bench, had wrought in the standing and repute of the Supreme

Court.[856] The doctrines of the Chief Justice amount to this, said

Niles--"congress may grant _monopolies_" at will, "if the _price_ is

paid for them, or without any pecuniary consideration at all." As for

the Chief Justice personally, he "has not added ... to his stock of

reputation by writing it--_it is excessively labored_."[857]

Papers throughout the country copied Niles's bitter criticisms,[858] and

public opinion rapidly crystallized against Marshall's Nationalist

doctrine. Every where the principle asserted by the Chief Justice became

a political issue; or, rather, his declaration, that that principle was

law, made sharper the controversy that had divided the people since the

framing of the Constitution.