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statutes for the purpose of changing the method of electing trustees, and transfer the right of election of successors from the Board of Trustees themselves. The Supreme Court of the State of New Hampshire held this to be a proper exercise of the powers of the State, and that the statute did not violate any constitutional rights of the trustees. The case went to the Supreme Court of the United States, and was argued with great ability by brilliant counsel, noteworthy among whom was Daniel Webster. Many questions were discussed before the Court, but the opinion of the Court was based upon the following propositions as I understand it:

First, that clause of the Federal Constitution prohibiting a State from passing a law in violation of a contract, applied to contracts made between citizens and the sovereign, as well as between citizens themselves.

Second, that a charter granted by a State to private persons was something more than a royal prerogative that might be revoked at the pleasure of the sovereign. It was a contract between the sovereign and the incorporators, and being such a contract, fell within the inhibition or prohibition of the Federal Constitution.

Third, this being true that the sovereign State could pass no law that violated the provisions and terms of this charter.

Fourth, the right to perpetuate themselves was a right under this contract, and such a right as courts would protect.

Finally in view of these principles, the statutes of the legislature were in violation of the Federal Constitution and void.

The effect of the Dartmouth College case was far beyond the effect upon educational institutions, and the rights of trustees to perpetuate themselves. Out of it was developed the doctrine applicable to all charters granted all corporate institutions in all the States of the United States, to the effect that the State having once granted a franchise without limit as to time, or having granted as to the limits of time, had granted such immunities and privileges during that period, that all the power of the State government was exhausted over these things. No franchise could be revoked or repealed. No immunities could be modified or withdrawn. Perpetual rights, subject only to the exercise of the power of eminent domain, were vested

in the grantees. That this doctrine startled the lawyers of the time, cannot be doubted.

Under the English law, that Parliament could revoke a franchise was beyond dispute. Parliament was supreme. But here we have a Federal court staying the hand of every sovereign State in a manner that perhaps had never been considered before, and based upon an interpretation of a clause of the Constitution that many considered to have no application to anything except contracts between private individuals.

I am not proposing to discuss the wisdom or unwisdom of the soundness or unsoundness of this position; but am merely stating its effect upon the country so far as the development of corporate power is concerned.

It is manifest that the purport of this opinion was not fully appreciated for many years after it was announced, for it was only in the past forty years or so that the State governments begun to guard against it by constitutional provisions, and special reversations by enactments.

Mr. Justice Story in his opinion in the Dartmouth College case, had pointed out that it was entirely feasible for the State to guard against these results insofar as any future charters were concerned by reserving in the grant the right of repeal or modification. And we find in the middle of the century, and on down to the seventies, frequent constitutional provisions to this effect.

Take the State of Tennessee for example. It was apparent that the full effect of this opinion was not appreciated much before the Constitution of 1870. For a while we find a few reservations of the right to modify or repeal charters prior to this time, but not changing the well established principle of our law until the Constitution of 1870 was adopted. As a result of that for example there is still in the State of Tennessee many striking illustrations. Certain railroads have been exempt from taxation. Stock in certain railroads have been exempt. Impartial franchises have not only been vested in railroads, but in turnpike companies. It is perhaps for his opinion in this case that modern publicists most severely criticize the Chief Justice.

But on the other hand it may be said that this decision in applying this clause of the Constitution in reference to con

tracts, to contracts that were made with the government, was entirely in line with the general policy of all his decisions. that there should be no principle announced that did not govern the people as a whole as against individuals, that governed individuals among themselves. He was not responsible for the broad clause upon this subject in the Constitution. He seemed merely to be considering the proposition of limitations of government, placed upon government as well as upon the people, and that the courts had nothing to do but to enforce such limitation when it was invoked.

It may be said finally that there can be no doubt that Marshall has made his impress upon the government of this country such as no other man has made either in peace or in He stands as a strange, peculiar figure, with no great opportunities for learning, and with perhaps no very great accomplishments prior to his elevation to the bench.

war.

He certainly stands out as a man with dominant intellectual force, marvelous ingenuity, clear insight and vision into the necessities of the situation, and a clearness and power of expression that has never been surpassed, and never equalled by any man upon the American bench. He possessed a marvelous intellectual power, great dignity of character, and an exalted courage that made him decide a case regardless of alignments on either side of the controversy.

He will never occupy the stage before the public gaze as Jefferson will, or as Washington will, or as Jackson will, or as Lincoln will; but before an audience of the thoughtful students of American history he will always appear in a stellar role not inferior to any of these great men.

Mr. L. D. Smith:-Mr. President, it affords me very great pleasure on this occasion to offer this resolution, that we offer the vote of thanks of this Association to our Brother Keeble for this most eloquent paper that he has read before us on this occasion.

Motion seconded and carried, by a rising vote.

The President:-Mr. Keeble, I convey to you the earnest thanks of this Association for that most learned paper. We are greatly your debtor.

Mr. L. D. Smith:-I make this further motion, in view of the very valuable and entertaining paper by Mr. Keeble, I think he should be allowed to always remain a member of this Association, for the reason that no man more fitly deserves to be, and for the second reason that we can not well get along without him. Therefore, I move that he be made an Honorary member of this Association.

Motion seconded and carried.

The President:-Gentlemen of the Bar Association, we have with us this afternoon as a distinguished guest of this Association, a lawyer from a much colder clime than this. My own personal knowledge of him is that some years ago he gave up being the special counsel of anybody that he might represent all who "had the price." He believes the National Anthem of the lawyers should be "If you haven't any money you need not come around." However, when it comes to things other than law suits, there is no man in the United States who has devoted more time to what is considered by those who would preserve our republican form of government as the question of greatest interest to the country, the Hon. Rome G. Brown, of Minneapolis, whom I now have the pleasure of presenting to you.

Gentlemen of the Tennessee Bar Association, Mr. Brown.

THE JUDICIARY AS THE SERVANT OF THE PEOPLE. BY ROME G. BROWN, MINNEAPOLIS, MINNESOTA.

Mr. President and Members of the Tennessee State Bar Association:

I notice from the program that my subject is mis-printed. It should read "The Judiciary as the Servant of the People." I am reminded, however, of the story told me by Judge Henderson as we were riding together to this meeting. One of the Judge's colored servants, whose regular work was that of general utility man about the stable, practiced as a side line preach

ing and exhorting among his people. One day he remarked to the Judge that he had preached twenty-two sermons in the past few months and that he never twice used the same text. When asked by the Judge how he could preach on so many different subjects in so short a time, he replied: "Well, you see, Jedge, Ah has twen'-two texes, but Ah allus preach de same sermon.' That is about the case with me. I have a score or more of "texes" but my sermon is always substantially the same.

In the present wide-spread discussion which has been the result of the prevalent spasm of attack upon the judiciary, there has been no more valiant defense of our constitutional system of government than that presented to you and to this country by your most worthy president, my friend, Mr. Biggs,* and by other members of your Tennessee Bar. Were it not for the special invitation which I have received to speak to you upon this subject, in which I have become interested more than ever in any other subject touching the welfare of our nation, I should hesitate to attempt at this time to interest you in any presentation which I might be able to make.

At the urgent request, however, of your president, I would call your attention to some phases of the question which possibly have not occurred to you. At the same time, I would also touch upon certain points, which, however much they may have before been presented, should in these times be rehearsed on every occasion when representative members of our profession gather together.

There are certain orthodox principles of our system of government which are so deeply rooted, such integral parts of our system of constitutional democracy, that they cannot be too often emphasized; and in these times when the heresies of disruption are sounding, widely and loudly to the popular ear, their discordant notes, and, by very force and persistence of hue and cry, attempting to drown and send to oblivion the melodious chant of the teachings of our fathers, let us, regardless of the din of fallacies, persist in our efforts, until, as in the Wagner chorus, the shrieks, even the enticing strains, of the forces of evil die away, and there shall emerge, victorious and with re

* "The Unrest as to the Administration of Law." Address by Albert W. Biggs before Texas State Bar Association at Galveston, July 3, 1912.

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