Page images
PDF
EPUB

to dethrone another. It made what the parties to the charter and the "laws of England" never did a contract which no human external power could ever modify or change. Judge Marshall decided, in effect, that the Revolution blotted out the legal existence of the "party of the first part "the fountain from which all its chartered blessings flowed-and put the state of New Hampshire in his place; that prior to the adoption of the constitution of the United States, the charter might lawfully have been so modified or changed; that the most vital attribute of the “contract "—an inviolability as fixed as the laws of the Medes and Persians— inhered, not in the language used by the parties and the recognized law at the time of its creation, but had been injected into it twenty years after it was made by that constitution.

Before and since the Revolution, the legislative bodies in New Hampshire were its "General Court." That court was accustomed to set aside fraudulent conveyances, order specific performance, revive rules of reference, blot out levies, cancel executions, open, annul, and relieve against judgments, and grant new trials, and in general to give relief where justice had not been done by the ordinary legal tribunals. This was sometimes, though rarely, done upon the ground that there was "no remedy at common law." These powers were exercised not as a court of chancery, eo nomine, but subject to a few theoretical restraints, upon the ground of legislative or parliamentary omnipotence. From 1692 to 1821, New Hampshire had no court of chancery. In 1821, two years after the final decision in this cause, Jeremiah Mason, one of the leading counsel in it, as chairman of the Committee on the Judiciary, reported a bill which became a law, conferring chancery powers in relation to trusts upon the highest court of the state.

Soon after the decision in 1819, some of the trustees who so stoutly resisted all similar attempts on the part of the state, proposed to make material changes in this "inviolable" contract, and these attempts have continued till the present day. The charter created the first board of trustees, made them the corporation, and gave them and their successors the power of

filling all vacancies. It fixed their number "forever" at "twelve and no more." This made the board a species of "council of ten." It is unnecessary to enquire now what would have become of the corporation in the possible but improbable event of the death of a quorum of the trustees or, their neglect or refusal to choose successors. Under the charter the alumni have no rights, but for years they have been knocking at the door of the corporation and asking recognition and representation in the board of trustees. As they had given or were expected to contribute liberally to the aid of their alma mater, the demand was in itself reasonable. The trustees were inclined to grant it, if it could be done. There was the "rub." The "successors" of those who so stoutly denied all legislative power in the premises in 1816-17, gravely considered the proposition to ask the legislature to amend the charter so that the alumni could elect a portion of the trustees; but they had not forgotten that a step somewhat akin to this, proposed by President Brown and Trustee Olcott, who had denied the power in 1816-1819, was under consideration in 1821, nor that Daniel Webster (see his letter to his brother, Ezekiel Webster, of June 17, 1821,) had said: "It would be injurious, I think, to propose to make this important alteration in the charter, before the ground was well explored," etc.

This project was recently abandoned as "too hazardous." The proposition now under consideration by the trustees, is in substance to adopt regulations whereby the alumni shall "nominate" a certain number of the trustees, with the understanding that the trustees shall "confirm" that "nomination," by going through the forms of an election. It is understood that a majority of the trustees are in favor of the plan stated. It is difficult to understand how trustees charged, as they claimed, in the most solemn manner, with the execution of great trusts, by the very instrument to which they owed their own existence and their powers, could, of their own motion, lawfully divert or annihilate the one, and change the legal effect of the other. If one step like this can be taken, another may; and this "inviolable" charter would be virtually abolished by the trustees.

But the important question for the American people is not whether the judgment against Judge Woodward could have been sustained upon other grounds, which the Judges of the Supreme Court could not consider without a violation of the constitution, the laws of the United States and their oaths; but whether the principle underlying that decision is definite, tangible and sound, whether it covers the innumerable causes which have found shelter under the wings of the opinions popularly supposed to have been delivered when that decision was given; and, in fact, whether the countless and constantly increasing array of corporations in this great country have more of sovereignty than the power which gave them being. No questions which can be raised involve such far-reaching consequences as these. And their importance increases year by year, in a ratio which has no parallel in the past, and can have none, when we shall have attained a population of from 200,000,000 to 500,000,000.

But the tide of events will force their discussion and compel their determination. They must be brought in review. The truth will be sought till found. It is best that this should be done by judicial decision. The court, as now constituted,. may not be able to settle them; if not, their successors must; or, if the republic endures, the people, in the proper way, will. The present judges are of varying, but in general, of eminently respectable attainments. Some of them are very eminent in special departments; but no fact is more painfully apparent to those who have studied closely the course of that great tribunal, than that its decisions lack the unity which marked them during the dictatorship of Marshall and under the great triumvirate of the "old bench," Taney, Nelson and Campbell. For years it has had no commanding spirit on its quarter-deck. It has lost its reckoning; it has been beating about in a storm; it has relapsed into the chaos of doubt and uncertainty which marked the earlier years of its existence, when the politicians-or statesmen-of that day bivouacked in the Chief Justiceship on their march from one political position to another. The territorial extent of the Union when that court was created, as compared with

the present, was but a "patch upon the earth's surface." The population has gone up from four to more than forty millions, and the judicial business has increased out of proportion to both. The country has outgrown the court. Laying out of the case the mass of causes originating in the district or circuit courts, which may go to the Supreme Court for final determination, it is, as to a most important class of questions, the court of last resort for nearly fifty states and territories. That the disparity must increase year by year is inevitable. It was the remark of Judge Curtis, one of the most eminent judges of the Supreme Court, that no lawyer could be of much assistance to a court unless he had grown up in the atmosphere of the statutes and the practice of that jurisdiction. It is simply impossible for the judges to have this knowledge of the local law which they are so often called upon to interpret. The result of all this has been hasty, conflicting and ill-considered decisions, and opinions sometimes slipshod, and wandering in darkness, while filled with learning.

Recruited at an early period in our history, by the political department of the government, to a great extent from political life, and hence to a certain degree fashioned by it, the Supreme Court has betrayed in its acts the defects of its organization. It has suffered from internal dissensions and outside pressure. It has sometimes done the things which it ought not to have done, and much oftener omitted to do those things which it ought to have done.

The power of taxation is generally conceded to be one of the primary attributes of sovereignty. If corrupt legislative bodies can irrevocably auction off this power to the highest bidder by instalments, why not the whole, and at once? If one of these attributes can be constitutionally converted into merchandise under the legislative hammer, why not others? Did the constitution, under the clause "nor impair the obligation of contracts" establish the doctrine of state suicide, or grant the power to destroy the "foundation idea of the government ?"

The Dartmouth College causes have a history. With Coke, as briefly as we may, let us begin at their "fountains to trace

the streams." In 1680, the king, sorely against the will of the settlers, who numbered less than 4000, created the province of New Hampshire, for the purpose of enabling the royal favorites to plunder them of the fruits of their lands, which they had reclaimed in spite of the red man's rifle, scalping knife and fagot. For years they suffered severely from these pro-consular robbers and their agents; but, at a later period, under the guidance of able leaders, the province in general had far less occasion to complain of the royal policy than many of her sister colonies, and often received marked favors at the hands of the crown. Massachusetts had long claimed dominion over the heart of the province, by an alleged boundary line, running from the Connecticut river to its eastern boundary, through a point about four miles north of Webster's birth-place. But on April 9, 1740, the king in council decided against Massachusetts, and gave New Hampshire an -east and west base line next to that river. Soon after, Benning Wentworth, governor of New Hampshire, assumed that this decision, in effect, carried the western boundary of the province across the Connecticut to the "South Sea," except so far as the same was covered by prior grants from the king. He laid out and granted away 136 towns, containing more than half a million acres of land, west of the Connecticut river, in what is now the state of Vermont, ending with Bennington, named for himself. Dunmore, governor of New York, subsequently granted away 511,900 acres of the same land. This brought on the controversy between New York, New Hampshire, Vermont, and the settlers in the valley, about the "New Hampshire grants," which kept the settlers on both sides of the river in a political ferment for years, and brought the whole to the very verge of civil war.

In 1735 the Rev. Dr. Eleazer Wheelock, of Lebanon, Connecticut, a graduate of Yale, was ordained. He was a man of powerful intellect, great energy and intense religious zeal. He stood in the van of the "great religious awakening of 1740." In his anxiety "to spread the borders of Zion" he revived, in 1754, the "Indian Charity School," established at Stockbridge, by Sargent, under the name of "Moors'

« PreviousContinue »