[584] Jefferson to Adams, Nov. 7, 1819, _Works_: Ford, XII, 145.

[585] Niles, XVII, 85.

[586] Niles, XVII, 185.

[587] _Memoirs, J. Q. A._: Adams, May 27, 1819, IV, 375.

[588] _Ib._ 391.

[589] Collins, 88.

[590] "The disappointment is altogether ascribed to the Bank of the U.S." (King to Mason, Feb. 7, 1819, King, VI, 205.) King's testimony is uncommonly trustworthy. His son was an officer of the branch of Chillicothe, Ohio.

[591] See Article X, Section 1, Const.i.tution of Indiana, as adopted June 29, 1816.

[592] See Catterall, 64-65, and sources there cited.

[593] Spelled _Sturgis_ on the ma.n.u.script records of the Supreme Court.

[594] 4 Wheaton, 192.

[595] 4 Wheaton, 192-93.

[596] 4 Wheaton, 194.

[597] _Ib._ 195.

[598] 4 Wheaton, 196.

[599] "No State shall ... emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pa.s.s any ... ex post facto Law, or Law impairing the Obligation of Contracts."

[600] 4 Wheaton, 196-97.

[601] For the proceedings in the Const.i.tutional Convention on this clause, see vol. III, chap. X, of this work.

[602] 4 Wheaton, 197.

[603] _Ib._ 197-98.

[604] 4 Wheaton, 198.

[605] 4 Wheaton, 199.

[606] _Ib._ 200.

[607] 4 Wheaton, 200-01.

[608] 4 Wheaton, 202.

[609] _Ib._ 203-04.

[610] 4 Wheaton, 205.

[611] _Ib._ 206.

[612] Niles, XVI, 76.

[613] "It will probably, make some great revolutions in property, and raise up many from penury ... and cause others to descend to the condition that becomes _honest men_, by compelling a payment of their debts--as every honest man ought to be compelled to do, if ever able....

It ought not to be at any one's discretion to say when, or under what _convenient_ circ.u.mstances, he will _wipe off_ his debts, by the benefit of an insolvent law--as some do every two or three years; or, just as often as they can get credit enough to make any thing by it." (Niles, XVI, 2.)

[614] See _infra_, next chapter.

CHAPTER V

THE DARTMOUTH COLLEGE CASE

Such a contract, in relation to a publick inst.i.tution would be absurd and contrary to the principles of all governments. (Chief Justice William M. Richardson.)

It would seem as if the state legislatures have an invincible hostility to the sacredness of charters. (Marshall.)

Perhaps no judicial proceedings in this country ever involved more important consequences. (_North American Review_, 1820.)

It is the legitimate business of government to see that contracts are fulfilled, that charters are kept inviolate, and the foundations of human confidence not rudely or wantonly disturbed. (John Fiske.)

Just before Marshall delivered his opinion in Sturges _vs._ Crowninshield, he gave to the Nation another state paper which profoundly influenced the development of the United States. It was one of the trilogy of Const.i.tutional expositions which make historic the February term, 1819, of the Supreme Court of the United States. This p.r.o.nouncement, like that in the bankruptcy case, had to do with the stability of contract. Both were avowals that State Legislatures cannot, on any pretext, overthrow agreements, whether in the form of engagements between individuals or franchises to corporations. Both were meant to check the epidemic of repudiatory legislation which for three years had been sweeping over the land and was increasing in virulence at the time when Marshall prepared them. The Dartmouth opinion was wholly written in Virginia during the summer, autumn, or winter of 1818; and it is probable that the greater part of the opinion in Sturges _vs._ Crowninshield was also prepared when the Chief Justice was at home or on his vacation.

Marshall's economic and political views, formed as a young man,[615] had been strengthened by every event that had since occurred until, in his sixty-fifth year, those early ideas had become convictions so deep as to pervade his very being. The sacredness of contract, the stability of inst.i.tutions, and, above all, Nationalism in government, were, to John Marshall, articles of a creed as holy as any that ever inspired a religious enthusiast.

His opinion of contract had already been expressed by him not only in the sensational case of Fletcher _vs._ Peck,[616] but far more rigidly two years later, 1812, in the important case of the State of New Jersey _vs._ Wilson.[617] In 1758, the Proprietary Government of New Jersey agreed to purchase a tract of land for a band of Delaware Indians, provided that the Indians would surrender their t.i.tle to all other lands claimed by them in New Jersey. The Indians agreed and the contract was embodied in an act of the Legislature, which further provided that the lands purchased for the Indians should "not hereafter be subject to any tax, any law, usage or custom to the contrary thereof, in any wise notwithstanding."[618] The contract was then executed, the State purchasing lands for the Indians and the latter relinquishing the lands claimed by them.

After forty years the Indians, wishing to join other Delawares in New York, asked the State of New Jersey to authorize the sale of their lands. This was done by an act of the Legislature, and the lands were sold. Soon after this, another act was pa.s.sed which repealed that part of the Act of 1758 exempting the lands from taxation. Accordingly the lands were a.s.sessed and payment of the tax demanded. The purchasers resisted and, the Supreme Court of New Jersey having held valid the repealing act, took the case to the Supreme Court of the United States.

In a brief opinion, in which it is worthy of particular note that the Supreme Court was unanimous, Marshall says that the Const.i.tution protects "contracts to which a state is a party, as well as ...

contracts between individuals.... The proceedings [of 1758] between the then colony ... and the Indians ... is certainly a contract clothed in forms of unusual solemnity." The exemption of the lands from taxation, "though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons." This element of the contract was valuable to the Indians, since, "in the event of a sale, on which alone the question could become material, the value [of the lands] would be enhanced" by the exemption.

New Jersey "might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed"; but this had not been done and the land was sold "with the a.s.sent of the state, with all its privileges and immunities. The purchaser succeeds, with the a.s.sent of the state, to all the rights of the Indians. He stands, with respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it."[619]

After his opinions in Fletcher _vs._ Peck and in New Jersey _vs._ Wilson, n.o.body could have expected from John Marshall any other action than the one he took in the Dartmouth College case.[620]

The origins of the Dartmouth controversy are tangled and obscure. When on December 23, 1765, a little ocean-going craft, of which a New England John Marshall[621] was skipper, set sail from Boston Harbor for England with Nathaniel Whitaker and Samson Occom on board,[622] a succession of curious events began which, two generations afterward, terminated in one of the most influential decisions ever rendered by a court. Whitaker was a preacher and a disciple of George Whitefield; Occom was a young Indian, converted to Christianity by one Eleazar Wheelock, and endowed with uncommon powers of oratory.

Wheelock had built up a wilderness school to which were admitted Indian youth, in whom he became increasingly interested. Occom was one product of his labors, and Wheelock sent him to England as a living, speaking ill.u.s.tration of what his school could do if given financial support.

Whitaker went with the devout and talented Indian as the business agent.[623]