6: The Sanctity Of Contracts
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Marshall's work was one of conservation in so far as it was
concerned with interpreting the Constitution in accord with the
intention which its framers had of establishing an efficient
National Government. But he found a task of restoration awaiting
him in that great field of Constitutional Law which defines state
powers in relation to private rights.
To provide adequate safeguards for property and contracts against
state legislative power was one of the most important objects of
the framers, if indeed it was not the most important. Consider,
for instance, a colloquy which occurred early in the Convention
between Madison and Sherman of Connecticut. The latter had
enumerated "the objects of Union" as follows: "First, defense
against foreign danger; secondly, against internal disputes and a
resort to force; thirdly, treaties with foreign nations;
fourthly, regulating foreign commerce and drawing revenue from
it." To this statement Madison demurred. The objects mentioned
were important, he admitted, but he "combined with them the
necessity of providing more effectually for the securing of
private rights and the steady dispensation of justice.
Interferences with these were evils which had, more perhaps than
anything else, produced this Convention."
Marshall's sympathy with this point of view we have already
noted.1 Nor was Madison's reference solely to the then recent
activity of state Legislatures in behalf of the much embarrassed
but politically dominant small farmer class. He had also in mind
that other and more ancient practice of Legislatures of enacting
so-called "special legislation," that is, legislation altering
under the standing law the rights of designated parties, and not
infrequently to their serious detriment. Usually such legislation
took the form of an intervention by the Legislature in private
controversies pending in, or already decided by, the ordinary
courts, with the result that judgments were set aside, executions
canceled, new hearings granted, new rules of evidence introduced,
void wills validated, valid contracts voided, forfeitures
pronounced—all by legislative mandate. Since that day the courts
have developed an interpretation of the principle of the
separation of powers and have enunciated a theory of "due process
of law," which renders this sort of legislative abuse quite
impossible; but in 1787, though the principle of the separation
of powers had received verbal recognition in several of the state
Constitutions, no one as yet knew precisely what the term
"legislative power" signified, and at that time judicial review
did not exist.2 Hence those who wished to see this nuisance of
special legislation abated felt not unnaturally that the relief
must come from some source external to the local governments, and
they welcomed the movement for a new national Constitution as
affording them their opportunity.
The Constitution, in Article I, Section X, forbids the States to
"emit bills of credit, make anything but gold and silver a legal
tender in payment of debts, pass any bill of attainder, ex post
facto law, or law impairing the obligation of contracts." Until
1798, the provision generally regarded as offering the most
promising weapon against special legislation was the ex post
facto clause. In that year, however, in its decision in Calder
vs. Bull the Court held that this clause "was not inserted to
secure the citizen in his private rights of either property or
contracts," but only against certain kinds of penal legislation.
The decision roused sharp criticism and the judges themselves
seemed fairly to repent of it even in handing it down. Justice
Chase, indeed, even went so far as to suggest, as a sort of
stop-gap to the breach they were thus creating in the
Constitution, the idea that, even in the absence of written
constitutional restrictions, the Social Compact as well as "the
principles of our free republican governments" afforded
judicially enforcible limitations upon legislative power in favor
of private rights. Then, in the years immediately following,
several state courts, building upon this dictum, had definitely
announced their intention of treating as void all legislation
which they found unduly to disturb vested rights, especially if
it was confined in its operation to specified parties.3
Such was still the situation when the case of Fletcher vs. Peck4
in 1810 raised before the Supreme Court the question whether the
Georgia Legislature had the right to rescind a land grant made by
a preceding Legislature. On any of three grounds Marshall might
easily have disposed of this case before coming to the principal
question. In the first place, it was palpably a moot case; that
is to say, it was to the interest of the opposing parties to have
the rescinding act set aside. The Court would not today take
jurisdiction of such a case, but Marshall does not even suggest
such a solution of the question, though Justice Johnson does in
his concurring opinion. In the second place, Georgia's own claim
to the lands had been most questionable, and consequently her
right to grant them to others was equally dubious; but this, too,
is an issue which Marshall avoids. Finally, the grant had been
procured by corrupt means, but Marshall ruled that this was not a
subject the Court might enter upon; and for the ordinary run of
cases in which undue influence is alleged to have induced the
enactment of a law, the ruling is clearly sound. But this was no
ordinary case. The fraud asserted against the grant was a matter
of universal notoriety; it was, indeed, the most resounding
scandal of the generation; and surely judges may assume to know
what is known to all and may act upon their knowledge.
Furthermore, when one turns to the part of Marshall's opinion
which deals with the constitutional issue, one finds not a little
evidence of personal predilection on the part of the Chief
Justice. He starts out by declaring the rescinding act void as a
violation of vested rights, of the underlying principles of
society and government, and of the doctrine of the separation of
powers. Then he apparently realizes that a decision based on such
grounds must be far less secure and much less generally available
than one based on the words of the Constitution; whereupon he
brings forward the obligation of contracts clause. At once,
however, he is confronted with the difficulty that the obligation
of a contract is the obligation of a contract still to be
fulfilled, and that a grant is an executed contract over and done
with—functus officio. This difficulty he meets by asserting that
every grant is attended by an implied contract on the part of the
grantor not to reassert his right to the thing granted. This, of
course, is a palpable fiction on Marshall's part, though
certainly not an unreasonable one. For undoubtedly when a grant
is made without stipulation to the contrary, both parties assume
that it will be permanent.
The greater difficulty arose from the fact that, whether implied
or explicit, the contract before the Court was a public one. In
the case of private contracts it is easy enough to distinguish
the contract, as the agreement between the parties, from the
obligation of the contract which comes from the law and holds the
parties to their engagements. But what law was there to hold
Georgia to her supposed agreement not to rescind the grant she
had made? Not the Constitution of the United States unattended by
any other law, since it protects the obligation only after it has
come into existence. Not the Constitution of Georgia as construed
by her own courts, since they had sustained the rescinding act.
Only one possibility remained; the State Constitution must be the
source of the obligation—yes; but the State Constitution as it
was construed by the United States Supreme Court in this very
case, in the light of the "general principles of our political
institutions." In short the obligation is a moral one; and this
moral obligation is treated by Marshall as having been converted
into a legal one by the United States Constitution.
However, Marshall apparently fails to find entire satisfaction in
this argument, for he next turns to the prohibition against bills
of attainder and ex post facto laws with a question which
manifests disapproval of the decision in Calder vs. Bull. Yet he
hesitates to overrule Calder vs. Bull, and, indeed, even at the
very end of his opinion he still declines to indicate clearly the
basis of his decision. The State of Georgia, he says, "was
restrained" from the passing of the rescinding act "either by
general principles which are common to our free institutions, or
by particular provisions of the Constitution of the United
States." It was not until nine years after Fletcher vs. Peck that
this ambiguity was cleared up in the Dartmouth College case in
1819.
The case of the Trustees of Dartmouth College vs. Woodward5 was a
New England product and redolent of the soil from which it
sprang. In 1754 the Reverend Eleazar Wheelock of Connecticut had
established at his own expense a charity school for instructing
Indians in the Christian religion; and so great was his success
that he felt encouraged to extend the undertaking and to solicit
donations in England. Again success rewarded his efforts; and in
1769 Governor Wentworth of New Hampshire, George III's
representative granted the new institution, which was now located
at Hanover, New Hampshire, a charter incorporating twelve named
persons as "The Trustees of Dartmouth College" with the power to
govern the institution, appoint its officers, and fill all
vacancies in their own body "forever."
For many years after the Revolution, the Trustees of Dartmouth
College, several of whom were ministers, reflected the spirit of
Congregationalism. Though this form of worship occupied almost
the position of a state religion in New Hampshire, early in this
period difficulties arose in the midst of the church at Hanover.
A certain Samuel Hayes, or Haze, told a woman named Rachel Murch
that her character was "as black as Hell," and upon Rachel's
complaint to the session, he was "churched" for "breach of the
Ninth Commandment and also for a violation of his covenant
agreement." This incident caused a rift which gradually developed
into something very like a schism in the local congregation, and
this internal disagreement finally produced a split between
Eleazar's son, Dr. John Wheelock, who was now president of
Dartmouth College, and the Trustees of the institution. The
result was that in August, 1815, the Trustees ousted Wheelock.
The quarrel had thus far involved only Calvinists and
Federalists, but in 1816 a new element was brought in by the
interference of the Governor of New Hampshire, William Plumer,
formerly a Federalist but now, since 1812, the leader of the
Jeffersonian party in the State. In a message to the Legislature
dated June 6, 1816, Plumer drew the attention of that body to
Dartmouth College. "All literary establishments," said he, "like
everything human, if not duly attended to, are subject to
decay.... As it [the charter of the College] emanated from
royalty, it contained, as was natural it should, principles congenial to
monarchy," and he cited particularly the power of the Board of
Trustees to perpetuate itself. "This last principle," he
continued, "is hostile to the spirit and genius of a free
government. Sound policy therefore requires that the mode of
election should be changed and that Trustees in future should be
elected by some other body of men.... The College was formed
for the public good, not for the benefit or emolument of its
Trustees; and the right to amend and improve acts of
incorporation of this nature has been exercised by all
governments, both monarchical and republican."
Plumer sent a copy of his message to Jefferson and received a
characteristic answer in reply "It is replete," said the
Republican sage, "with sound principles.... 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
held the earth more freely than we do; 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." And so, too,
apparently the majority of the Legislature believed; for by the
measure which it promptly passed, in response to Plumer's
message, the College was made Dartmouth University, the number of
its trustees was increased to twenty-one, the appointment of the
additional members being given to the Governor, and a board of
overseers, also largely of gubernatorial appointment, was created
to supervise all important acts of the trustees.
The friends of the College at once denounced the measure as void
under both the State and the United States Constitution and soon
made up a test case. In order to obtain the college seal,
charter, and records, a mandate was issued early in 1817 by a
local court to attach goods, to the value of $50,000, belonging
to William H. Woodward, the Secretary and Treasurer of the
"University." This was served by attaching a chair "valued at
one dollar." The story is also related that authorities of the
College, apprehending an argument that the institution had
already forfeited its charter on account of having ceased to
minister to Indians, sent across into Canada for some of the
aborigines, and that three were brought down the river to receive
matriculation, but becoming panic-stricken as they neared the
town, leaped into the water, swam ashore, and disappeared in the
forest. Unfortunately this interesting tale has been seriously
questioned.
The attorneys of the College before the Superior Court were
Jeremiah Mason, one of the best lawyers of the day, Jeremiah
Smith, a former Chief Justice of New Hampshire, and Daniel
Webster. These three able lawyers argued that the amending act
exceeded "the rightful ends of legislative power," violated the
principle of the separation of powers, and deprived the trustees
of their "privileges and immunities" contrary to the "law of the
land" clause of the State Constitution, and impaired the
obligation of contracts. The last contention stirred Woodward's
attorneys, Bartlett and Sullivan, to ridicule. "By the same
reasoning," said the latter, "every law must be considered in the
nature of a contract, until the Legislature would find themselves
in such a labyrinth of contracts, with the United States
Constitution over their heads, that not a subject would be left
within their jurisdiction"; the argument was an expedient of
desperation, he said, a "last straw." The principal contention
advanced in behalf of the Act was that the College was "a public
corporation," whose "various powers, capacities, and franchises
all...were to be exercised for the benefit of the public,"
and were therefore subject to public control. And the Court, in
sustaining the Act, rested its decision on the same ground. Chief
Justice Richardson conceded the doctrine of Fletcher vs. Peck,
that the obligation of contracts clause "embraced all contracts
relating to private property, whether executed or executory, and
whether between individuals, between States, or between States
and individuals," but, he urged, "a distinction is to be taken
between particular grants by the Legislature of property or
privileges to individuals for their own benefit, and grants of
power and authority to be exercised for public purposes." Its
public character, in short, left the College and its holdings at
the disposal of the Legislature.
Of the later proceedings, involving the appeal to Washington and
the argument before Marshall, early in March, 1818, tradition has
made Webster the central and compelling figure, and to the words
which it assigns him in closing his address before the Court has
largely been attributed the great legal triumph which presently
followed. The story is, at least, so well found that the
chronicler of Dartmouth College vs. Woodward who should venture
to omit it must be a bold man indeed.
"The argument ended [runs the tale], Mr. Webster stood for some
moments silent before the Court, while every eye was fixed
intently upon him. At length, addressing the Chief Justice, he
proceeded thus: 'This, sir, is my case. It is the case...of
every college in our land.... Sir, you may destroy this
little institution.... You may put it out. But if you do so,
you must carry through your work! You must extinguish, one after
another, all those greater 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—'
"Here, the feelings which he had thus far succeeded in keeping
down, broke forth, his lips quivered; his firm cheeks trembled
with emotion, his eyes filled with tears.... The court-room
during these two or three minutes presented an extraordinary
spectacle. 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 his eyes suffused with
tears; Mr. Justice Washington at his side, with small and
emaciated frame, and countenance more like marble than I ever saw
on any other human being.... There was not one among the
strong-minded men of that assembly who could think it unmanly to
weep, when he saw standing before him the man who had made such
an argument, melted into the tenderness of a child.
"Mr. Webster had now recovered his composure, and, fixing his
keen eyes on Chief Justice Marshall, said in that deep tone with
which he sometimes thrilled the heart of an audience: 'Sir, I
know not how others may feel...but for myself, when I see my
Alma Mater surrounded, like Caesar in the Senate house, by those
who are reiterating stab after stab, I would not, for my right
hand, have her turn to me and say, Et tu quoque mi fili! And
thou, too, my son!'
Whether this extraordinary scene, first described thirty-four
years afterward by a putative witness of it, ever really occurred
or not, it is today impossible to say.6 But at least it would be
an error to attribute to it great importance. From the same
source we have it that at Exeter, too, Webster had made the
judges weep—yet they had gone out and decided against him.
Judges do not always decide the way they weep!
Of the strictly legal part of his argument Webster himself has
left us a synopsis. Fully three-quarters of it dealt with the
questions which had been discussed by Mason before the State
Supreme Court under the New Hampshire Constitution and was
largely irrelevant to the great point at issue at Washington.
Joseph Hopkinson, who was now associated with Webster,
contributed far more to the content of Marshall's opinion; yet
he, too, left one important question entirely to the Chief
Justice's ingenuity, as will be indicated shortly. Fortunately
for the College its opponents were ill prepared to take advantage
of the vulnerable points of its defense. For some unknown reason,
Bartlett and Sullivan, who had carried the day at Exeter, had now
given place to William Wirt and John Holmes. Of these the former
had just been made Attorney-General of the United States and had
no time to give to the case—indeed he admitted that "he had
hardly thought of it till it was called on." As for Holmes, he
was a "kaleidoscopic politician" and barroom wit, best known to
contemporaries as "the noisy eulogist and reputed protege of
Jefferson." A remarkable strategy that, which stood such a person
up before John Marshall to plead the right of state Legislatures
to dictate the fortunes of liberal institutions!
The arguments were concluded on Thursday, the 12th of March. The
next morning the Chief Justice announced that the Court had
conferred, that there were different opinions, that some of the
judges had not arrived at a conclusion, and that consequently the
cause must be continued. Webster, however, who was apt to be much
in "the know" of such matters, ventured to place the different
judges thus: "The Chief and Washington," he wrote his former
colleague Smith, "I have no doubt, are with us. Duvall and Todd
perhaps against us; the other three holding up—I cannot much
doubt but that Story will be with us in the end, and I think we
have much more than an even chance for one of the others."
The friends of the College set promptly to work to bring over the
wavering judges. To their dismay they learned that Chancellor
James Kent of New York, whose views were known to have great
weight with Justices Johnson and Livingston, had expressed
himself as convinced by Chief Justice Richardson's opinion that
Dartmouth College was a public corporation. Fortunately, however,
a little ransacking of the records brought to light an opinion
which Kent and Livingston had both signed as early as 1803, when
they were members of the New York Council of Revision, and which
took the ground that a then pending measure in the New York
Legislature for altering the Charter of New York City violated
"due process of law." At the same time, Charles Marsh, a friend
of both Kent and Webster, brought to the attention of the former
Webster's argument before Marshall at Washington in March, 1818.
Then came a series of conferences at Albany in which Chancellor
Kent, Justice Johnson, President Brown of Dartmouth College,
Governor Clinton, and others participated. As a result, the
Chancellor owned himself converted to the idea that the College
was a private institution.
The new term of court opened on Monday, February 1, 1819. William
Pinkney, who in vacation had accepted a retainer from the backers
of Woodward, that is, of the State, took his stand on the second
day near the Chief Justice, expecting to move for a reargument.
Marshall, "turning his blind eye" to the distinguished
Marylander, announced that the Court had reached a decision,
plucked from his sleeve an eighteen folio manuscript opinion, and
began reading it. He held that the College was a "private
eleemosynary institution"; that its charter was the outgrowth of
a contract between the original donors and the Crown, that the
trustees represented the interest of the donors, and that the
terms of the Constitution were broad enough to cover and protect
this representative interest. The last was the only point on
which he confessed a real difficulty. The primary purpose of the
constitutional clause, he owned, was to protect "contracts the
parties to which have a vested beneficial interest" in them,
whereas the trustees had no such interest at stake. But, said he,
the case is within the words of the rule, and "must be within its
operation likewise, unless there be something in the literal
construction" obviously at war with the spirit of the
Constitution, which was far from the fact. For, he continued, "it
requires no very critical examination of the human mind to enable
us to determine that one great inducement to these gifts is the
conviction felt by the giver that the disposition he makes of
them is immutable. 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. If every man
finds in his own bosom strong evidence of the universality of
this sentiment, there can be but little reason to imagine that
the framers of our Constitution were strangers to it, and that,
feeling the necessity and policy of giving permanence and
security to contracts" generally, they yet deemed it desirable to
leave this sort of contract subject to legislative interference.
Such is Marshall's answer to Jefferson's outburst against "the
dead hand."
Characteristically, Marshall nowhere cites Fletcher vs. Peck in
his opinion, but he builds on the construction there made of the
"obligation of contracts" clause as clearly as do his associates,
Story and Washington, who cite it again and again in their
concurring opinion. Thus he concedes that the British Parliament,
in consequence of its unlimited power, might at any time before
the Revolution have annulled the charter of the College and so
have disappointed the hopes of the donors; but, he adds, "The
perfidy of the transaction would have been universally acknowledged." Later on, he further admits that at the time of
the Revolution the people of New Hampshire succeeded to "the
transcendent power of Parliament," as well as to that of the
King, with the result that a repeal of the charter before 1789
could have been contested only under the State Constitution. "But
the Constitution of the United States," he continues, "has
imposed this additional limitation, that the Legislature of a
State shall pass no act 'impairing the obligation of contracts.'"
In short, as in Fletcher vs. Peck, what was originally a moral
obligation is regarded as having been lifted by the Constitution
into the full status of a legal one, and this time without any
assistance from "the general principles of our free
institutions."
How is the decision of the Supreme Court in the case of Dartmouth
College vs. Woodward to be assessed today? Logically the basis of
it was repudiated by the Court itself within a decade, albeit the
rule it lays down remained unaffected. Historically it is equally
without basis, for the intention of the obligation of contracts
clause, as the evidence amply shows, was to protect private
executory contracts, and especially contracts of debt.7 In actual
practice, on the other hand, the decision produced one
considerable benefit: in the words of a contemporary critic, it
put private institutions of learning and charity out of the reach
of "legislative despotism and party violence."
But doubtless, the critic will urge, by the same sign this
decision also put profit-seeking corporations beyond wholesome
legislative control. But is this a fact? To begin with, such a
criticism is clearly misdirected. As we have just seen, the New
Hampshire Superior Court itself would have felt that Fletcher vs.
Peck left it no option but to declare the amending act void, had
Dartmouth College been, say, a gas company; and this was in all
probability the universal view of bench and bar in 1819. Whatever
blame there is should therefore be awarded the earlier decision.
But, in the second place, there does not appear after all to be
so great measure of blame to be awarded. The opinion in Dartmouth
College vs. Woodward leaves it perfectly clear that legislatures
may reserve the right to alter or repeal at will the charters
they grant. If therefore alterations and repeals have not been as
frequent as public policy has demanded, whose fault is it?
Perhaps, however, it will be argued that the real mischief of the
decision has consisted in its effect upon the state Legislatures
themselves, the idea being that large business interests, when
offered the opportunity of obtaining irrepealable charters, have
frequently found it worth their while to assail frail legislative
virtue with irresistible temptation. The answer to this charge is
a "confession in avoidance"; the facts alleged are true enough
but hardly to the point. Yet even if they were, what is to be
said of that other not uncommon incident of legislative history,
the legislative "strike," whereby corporations not protected by
irrepealable charters are blandly confronted with the alternative
of having their franchises mutilated or of paying handsomely for
their immunity? So the issue seems to resolve itself into a
question of taste regarding two species of legislative "honesty."
Does one prefer that species which, in the words of the late
Speaker Reed, manifests itself in "staying bought," or that
species which flowers in legislative blackmail? The truth of the
matter is that Marshall's decision has been condemned by
ill-informed or ill-intentioned critics for evils which are much
more simply and much more adequately explained by general human
cupidity and by the power inherent in capital. These are evils
which have been experienced quite as fully in other countries
which never heard of the "obligation of contracts" clause.
The decisions reached in Fletcher vs. Peck and Dartmouth College
vs. Woodward are important episodes in a significant phase of
American constitutional history. Partly on account of the lack of
distinction between legislative and judicial power and partly on
account of the influence of the notion of parliamentary
sovereignty, legislative bodies at the close of the eighteenth
century were the sources of much anonymous and corporate
despotism. Even in England as well as in this country the value,
and indeed the possibility, of representative institutions had
been frankly challenged in the name of liberty. For the United
States the problem of making legislative power livable and
tolerable—a problem made the more acute by the multiplicity of
legislative bodies—was partly solved by the establishment of
judicial review. But this was only the first step: legislative
power had still to be defined and confined. Marshall's audacity
in invoking generally recognized moral principles against
legislative sovereignty in his interpretation of the "obligation
of contracts" clause pointed the way to the American judiciaries
for the discharge of their task of defining legislative power.
The final result is to be seen today in the Supreme Court's
concept of the police power of a State as a power not of
arbitrary but of reasonable legislation.
While Marshall was performing this service in behalf of
representative government, he was also aiding the cause of
nationalism by accustoming certain types of property to look upon
the National Government as their natural champion against the
power of the States. In this connection it should also be
recalled that Gibbons vs. Ogden and Brown vs. Maryland had
advanced the principle of the exclusiveness of Congress's power
over foreign and interstate commerce. Under the shelter of this
interpretation there developed, in the railroad and
transportation business of the country before the Civil War, a
property interest almost as extensive as that which supported the
doctrine of State Rights. Nor can it be well doubted that
Marshall designed some such result or that he aimed to prompt the
reflection voiced by King of Massachusetts on the floor of the
Federal Convention. "He was filled with astonishment that, if we
were convinced that every man in America was secured in all his
rights, we should be ready to sacrifice this substantial good to
the phantom of state sovereignty."
Lastly, these decisions brought a certain theoretical support to
the Union. Marshall himself did not regard the Constitution as a
compact between the States; if a compact at all, it was a compact
among individuals, a social compact. But a great and increasing
number of his countrymen took the other view. How unsafe, then,
it would have been from the standpoint of one concerned for the
integrity of the Union, to distinguish public contracts from
private on the ground that the former, in the view of the
Constitution, had less obligation!
__________
1 See supra, Chapter II.
2 On special legislation, see the writer's Doctrine of Judicial
Review (Princeton, 1914), pp. 36-37, 69-71.
3In connection with this paragraph, see the writer's article
entitled "The Basic Doctrine of American Constitutional Law," in
the Michigan Law Review, February, 1914. Marshall once wrote
Story regarding his attitude toward Section X in 1787, as
follows: "The questions which were perpetually recurring in the
State legislatures and which brought annually into doubt
principles which I thought most sacred, which proved that
everything was afloat, and that we had no safe anchorage ground,
gave a high value in my estimation to that article of the
Constitution which imposes restrictions on the States."
Discourse.
46 Cranch, 87.
5The following account of this case is based on J. M. Shirley's
Dartmouth College Causes (St. Louis, 1879) and on the official
report, 4 Wheaton, 518.
6Professor Goodrich of Yale, who is responsible for the story,
communicated it to Rufus Choate in 1853. It next appears on
Goodrich's authority in Curtis's Webster, vol. II, pp. 169-71.
7Much of the evidence is readily traceable through the Index to
Max Farrand's Records of the Federal Convention.
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