It is a pity that Morse did not close with the offer of the learned judge, for, in spite of his opinion, in spite of the opinion of most men of intelligence, in defiance of the perfectly obvious and proven fact that Smith had utterly failed in fulfilling his part of the contract, and that the award had been made to Morse “as a reward altogether personal” (toute personelle), the referees decided in Smith’s favor.  And on what did they base this remarkable decision?  On the ground that in the contract of 1838 with Smith the word “otherwise” occurs.  Property in Europe was to be obtained by “letters patent” or “otherwise.”  Of course no actual property had been obtained, and Smith had had no hand in securing the honorary gratuity, and it is difficult to follow the reasoning of these sapient referees.  They were, on Smith’s part, Judge Upham of New Hampshire; on Morse’s, Mr. Hilliard, of Boston; and Judge Sprague, of the Circuit Court, Boston, chairman.

However, the decision was made, and Morse, with characteristic large-heartedness, submitted gracefully.  On October 15, he writes to Mr. Curtis:  “I ought, perhaps, with my experience to learn for the first time that Law and Justice are not synonyms, but, with all deference to the opinion of the excellent referees, for each of whom I have the highest personal respect, I still think that they have not given a decision in strict conformity with Law....  I submit, however, to law with kindly feelings to all, and now bend my attention to repair my losses as best I may.”

As remarked before, earlier in this volume, Morse, in his correspondence with Smith, always wrote in that courteous manner which becomes a gentleman, and he expresses his dissent from the verdict in this manner in a letter of November 20, in answer to one of Smith’s, quibbling over the allowance to Morse by the referees of certain expenses:  “Throwing aside as of no avail any discussion in regard to the equity of the decision of the referees, especially in the view of a conscientious and high-minded man, I now deal with the decision as it has been made, since, according to the technicalities of the law, it has been pronounced by honorable and honest men in accordance with their construction of the language of the deed in your favor.  But ’He that’s convinced against his will is of the same opinion still,’ and in regard to the intrinsic injustice of being compelled, by the strict construction of a general word, to pay over to you any portion of that which was expressly given to me as a personal and honorary gratuity by the European governments, my opinion is always as it has been, an opinion sustained by the sympathy of every intelligent and honorable man who has studied the merits of the case.”

He was hard hit for a time by this unjust decision, and his correspondence shows that he regretted it most because it prevented him from bestowing as much in good works as he desired.  He was obliged to refuse many requests which strongly appealed to him.  His daily mail contained numerous requests for assistance in sums “from twenty thousand dollars to fifty cents,” and it was always with great reluctance that he refused anybody anything.