The Life of John Marshall Volume IV Part 31

[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 citizens.h.i.+p. (s.h.i.+rley, 2-3.) Any one of them would have enabled the Supreme Court to have pa.s.sed 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 Const.i.tution, the occasion to declare, in effect, that these same fundamental principles are embraced in the contract clause of the written Const.i.tution 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, s.h.i.+rley, 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 munic.i.p.al privileges were not to be essentially affected without the consent of the parties concerned." (Record of Board, as quoted in _ib._ 254.)

[728] s.h.i.+rley, 253. s.h.i.+rley 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, s.h.i.+rley, 274-75.

[733] This is princ.i.p.ally the work of John M. s.h.i.+rley 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.

s.h.i.+rley 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)--s.h.i.+rley 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, s.h.i.+rley declares that for a whole hour Webster spoke as a Federalist partisan in order to influence Marshall. (s.h.i.+rley, 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 s.h.i.+rley's a.s.sumptions. Yet, because of the ma.s.s 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 s.h.i.+rley 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 antic.i.p.ated 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 doc.u.ments 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 s.h.i.+rley, 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 repet.i.tious.

[746] _Ib._ 634.