352
THE GREEN BAG
I should feel irresistibly carried away by the rushing current of your opinion. Reading it with a mind already pre-engaged to the other side, I feel my faith shaken, never theless, and cannot but say, ' Thou almost persuadest me.' ... As I read Taney's before I read yours, I felt agreeably sur prised by the clearness and distinction with which he had expressed himself and the analysis by which he appeared to have been able to- avoid the consideration of many of the topics introduced into the argument. But on reverting to his opinion again after a thorough study of yours, it seemed meagre indeed. Your richness of learning and argument was wanting. I thought of Wilke's exclamation on hearing the opinion of Lord Mansfield and his associates in his famous case — that listening to the latter after the former was taking hog wash after champagne. Your opinion is a wonderful monument of juridical learning and science. Indeed, I do not know where to turn for its match in all the books. ... At present it will suffice for me to say that you have made a skeptic, even if you have not gained a convert. Nobody in our country, or in the world, could have written your opinion but yourself. . . . Aut Morus, Aut Diabolus. It will stand in our books as an overtopping land mark of professional learning and science." Ex-Chancellor James Kent wrote to Story April 18, 1837: "The Bridge case I read as soon as I re ceived it, to the end of the opinion of the Chief Justice, and I then dropped the pam phlet in disgust and read no more. I have just now finished your masterly and exhaust ing argument."
Later he wrote to Story, June 23, 1837 : "I have re -perused the Charles River Bridge case, and with increased disgust. It abandons, or overthrows, a great principle of constitutional morality, and I think goes to destroy the security and value of legisla tive franchises. It injures the moral sense of the community, and destroys the sanctity of contracts. If the Legislature can quibble away, or whittle away its contracts with impunity, the people will be sure to follow. Quidquid delirant rcgcs plectuntur Achivi. I abhor the doctrine that the legislature is not bound by every thing that is necessarily implied in a contract, in order to give it
effect and value, and by nothing that is not expressed in luxe verba, that one rule of interpretation is to be applied to their engagements, and another rule to the con tracts of individuals. . . . But I had the consolation, in reading the case, to know that you have vindicated the principles and authority of the old settled law, with your accustomed learning, vigor, and warmth, and force." Story's dissenting opinion was also ap proved by such eminent Massachusetts lawyers as Webster, William Prescott and Jeremiah Mason. Webster wrote, shortly after the decision : "I lost the first five minutes of your opinion, but I heard enough to satisfy me that the opposite opinion had not a foot, nor an inch, of ground to stand on. "I say, in all candor, that it is the ablest, and best written opinion, I ever heard you deliver. It is close, searching, and scruti nizing; and at the same time full of strong and rather popular illustrations. "The intelligent part of the profession will all be with you. There is no doubt of that; but then the decision of the Court will have completely overturned, in my judgment, one great provision of the Constitution." Later, Webster said in an argument in behalf of the Lowell & Boston Railroad Company made in January, 1845, before a committee of the Massachusetts Legislature "When I look back now after a long lapse of years and read the judgments of those judges — I must say that I see, or think I see, all the difference between a manly, honest, and just maintenance of the right, and an ingen ious, elaborate, and sometimes half shame faced apology for what is wrong. Now I am willing to stake what belongs to me as a lawyer, and I have nothing else, and to place on record my decision that that decision cannot stand; that it does not now enjoy the general confidence of the profession; that there is not a head, with common sense in it, whether learned or unlearned, that does not think, not a breast that does not feel, that, in this case, the right has quailed before the concurrence of unfortunate cir cumstances." The last reference to this case, made by Judge Story in his correspondence, was in a
