In
Farrar's report of Mason's speech, twenty-three pages are devoted to the
first point, eight to the second, and six to the third. In other words, the
third point, involving the great constitutional doctrine on which the case
was finally decided at Washington, the doctrine that the Legislature, by
its acts, had impaired the obligation of a contract, was passed over
lightly. In so doing Mr. Mason was not alone. Neither he nor Judge Smith
nor Mr. Webster nor the court nor the counsel on the other side, attached
much importance to this point. Curiously 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.
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