The Life of John Marshall Volume IV Part 27

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 const.i.tution 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 inst.i.tution affected by this invasion of chartered rights. "Every college, and all the literary inst.i.tutions 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 pa.s.sage 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 Inst.i.tution; 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 fas.h.i.+on 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 Was.h.i.+ngton 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 Caesar 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 a.s.sociates 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 pa.s.sed upon the case without regard to the Const.i.tution, there can be no doubt that the decision would have been against the validity of the New Hamps.h.i.+re 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 lat.i.tude 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 Ma.s.sachusetts 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 Hamps.h.i.+re 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 const.i.tutional 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 Was.h.i.+ngton.... On _general_ principles, I am very confident the court at Was.h.i.+ngton would be with us."[714]

Holmes followed Webster. "The G.o.d-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 ant.i.thesis 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 repet.i.tion 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 a.s.sociates.

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.

[Ill.u.s.tration: 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 s.p.a.ce does not permit even a brief _precis_ of Hopkinson's admirable argument.[721] He quite justified Webster's a.s.surance 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, Was.h.i.+ngton, 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 Hamps.h.i.+re, 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 a.s.sume 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 Hamps.h.i.+re College Acts to be against natural right and in violation of the contract clause of the National Const.i.tution.[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 circ.u.mstances 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 Hamps.h.i.+re 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 circ.u.mstances, were usually granted and sometimes required by the court; and William Pinkney was the most highly regarded by that tribunal of all pract.i.tioners before it. So, on February 1, 1819, he took the Was.h.i.+ngton 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 n.o.body 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 a.s.sociate Justices of the Supreme Court of the United States," Marshall, at the head of his robed a.s.sociates, 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 circ.u.mspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case would it p.r.o.nounce a legislative act to be contrary to the const.i.tution.

"But the American people have said, in the const.i.tution of the United States, that 'no state shall pa.s.s 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 const.i.tution.' On the judges of this court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the const.i.tution 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 circ.u.mstances of this case const.i.tute a contract." On the faith of the charter "large contributions" to "a religious and literary inst.i.tution" 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 Const.i.tution, and do the New Hamps.h.i.+re 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 Const.i.tution 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 a.s.serted 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 inst.i.tution" 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 Const.i.tution.[743]

If, on the other hand, Dartmouth "be a private eleemosynary inst.i.tution," 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 inst.i.tution of learning. "But is Dartmouth College such an inst.i.tution? 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 inst.i.tution?... 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 const.i.tutes 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, a.s.sume 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 inst.i.tution," or in transferring "to the Government any new power over it."

"The character of civil inst.i.tutions 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 inst.i.tutions, created for the same objects, though not incorporated, would be public inst.i.tutions, 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 inst.i.tution."[750]