sly enough, the theory had been
originated many years before, by Wheelock himself, at a time when he
expected that the minority of the trustees would invoke the aid of the
Legislature against him, and his idea had been remembered. It was revived
at the time of the newspaper controversy, and was pressed upon the
attention of the trustees and upon that of their counsel. But the lawyers
attached little weight to the suggestion, although they introduced it and
argued it briefly. Mason, Smith, and Webster all relied for success on the
ground covered by the first point in Mason's brief. This is called by Mr.
Shirley the "Parsons view," from the fact that it was largely drawn from an
argument made by Chief Justice Parsons in regard to visitatorial powers at
Harvard College. Briefly stated, the argument was that the college was an
institution founded by private persons for particular uses; that the
charter was given to perpetuate such uses; that misconduct of the trustees
was a question for the courts, and that the Legislature, by its
interference, transcended its powers. To these general principles,
strengthened by particular clauses in the Constitution of New Hampshire,
the counsel for the college trusted for victory. The theory of impairing
the obligation of contracts they introduced, but they did not insist on it,
or hope for much from it. On this point, however, and, of course, on this
alone, the case went up to the Supreme Court. In December, 1817, Mr.
Webster wrote to Mr. Mason, regretting that the case went up on "one point
only." He occupied himself at this time in devising cases which should
raise what he considered the really vital points, and which, coming within
the jurisdiction of the United States, could be taken to the Circuit Court,
and thence to the Supreme Court at Washington. These cases, in accordance
with his suggestion, were begun, but before they came on in the Circuit
Court, Mr. Webster made his great effort in Washington. Three quarters of
his legal argument were there devoted to the points in the Circuit Court
cases, which were not in any way before the Supreme Court in the College
vs. Woodward. So little, indeed, did Mr. Webster think of the great
constitutional question which has made the case famous, that he forced the
other points in where he admitted that they had no proper standing, and
argued them at length. They were touched upon by Marshall, who, however,
decided wholly upon the constitutional q