Brookline, November, 1892.
Introduction.
Mr. Webster approaches as nearly to the _beau ideal_ of a republican
Senator as any man that I have ever seen in the course of my life;
worthy of Rome or Venice rather than of our noisy and wrangling
generation.--Hallam.
Coleridge used to say that he had seldom known or heard of any great
man who had not much of the woman in him. Even so the large intellect
of Daniel Webster seemed to be coupled with all softer feelings; and
his countenance and bearing, at the very first, impressed me with this.
A commanding brow, thoughtful eyes, and a mouth that seemed to respond
to all humanities. He deserves his fame, I am sure.--John Kenyon.
He is a magnificent specimen. You might say to all the world, "This is
our Yankee Englishman; such limbs we make in Yankee-land!" As a
parliamentary Hercules one would incline to back him at first sight
against all the extant world. The tanned complexion; that amorphous
craglike face; the dull black eyes under the precipice of brows, like
dull anthracite furnaces needing only to be _blown_; the mastiff mouth,
accurately closed; I have not traced so much of _silent Berserkir rage_
that I remember of in any other man.--Thomas Carlyle.
When the historian shall look back upon the first century of the
American Republic, the two names that will shine with most unfading
lustre and the serenest glory, high above all others, are Washington
and Webster.--Professor Felton.
Consider the remarkable phenomenon of excellence in three unkindred,
one might have thought incompatible, forms of public speech,--that of
the forum, with its double audience of bench and jury, of the halls of
legislation, and of the most thronged and tumultuous assemblies of the
people. Consider, further, that this multiform eloquence, exactly as
his words fell, became at once so much accession to permanent
literature in the strictest sense,--solid, attractive, rich,--and ask
how often in the history of public life such a thing has been
exemplified.--Rufus Choate.
The noblest monument to Daniel Webster is in his works. As a repository
of political truth and practical wisdom, applied to the affairs of
government, I know not where we shall find their equal. The works of
Burke naturally suggest themselves to the mind, as the only writings in
our language that can sustain the comparison.--Edward Everett.
He writes like a man who is thinking of his subject, and not of his
style, and thus he wastes no time upon the mere garb of his thoughts.
His style is Doric, not Corinthian. His sentences are like shafts hewn
from the granite of his own hills,--simple, massive, strong. We may
apply to him what Quinctilian says of Cicero, that a relish for his
writings is itself a mark of good taste.--George S. Hillard.
He taught the people of the United States, in the simplicity of common
understanding, the principles of the Constitution and government of the
country, and he wrought for them, in a style of matchless strength and
beauty, the literature of statesmanship. He made his language the very
household words of a nation. They are the library of the people. They
are the school-book of the citizen.--John D. Long.
Take him for all in all, he was not only the greatest orator this
country has ever known, but in the history of eloquence his name will
stand with those of Demosthenes and Cicero, Chatham and Burke.--Henry
Cabot Lodge.
It may be said that the style of Webster is pre-eminently distinguished
by manliness. The intellect and moral manliness of Webster underlies
all his great orations and speeches; and this plain force of manhood,
this sturdy grapple with every question that comes before his
understanding for settlement, leads him to reject all the meretricious
aids and ornaments of mere rhetoric, and is prominent, among the many
exceptional qualities of his large nature, which have given him a high
position among the prose-writers of his country as a consummate master
of English style.--Edwin P. Whipple.
His broad, wise statesmanship is to be the ample and refreshing shade,
his character the bright and breezy presence, in which all the members
of this great and illustrious Republic may meet and sit down and feast
together.--H. N. Hudson.
Contents.
Defence of the Kennistons
The Dartmouth College Case
First Settlement of New England
The Bunker Hill Monument
The Reply to Hayne
The Murder of Captain Joseph White
The Constitution Not a Compact Between Sovereign States
Speech at Saratoga
Eulogy on Mr. Justice Story
Biographical
Notes
Defence of the Kennistons.
Gentlemen of the Jury,--It is true that the offence charged in the
indictment in this case is not capital; but perhaps this can hardly be
considered as favorable to the defendants. To those who are guilty, and
without hope of escape, no doubt the lightness of the penalty of
transgression gives consolation. But if the defendants are innocent, it
is more natural for them to be thinking upon what they have lost by
that alteration of the law which has left highway robbery no longer
capital, than upon what the guilty might gain by it. They have lost
those great privileges in their trial, which the law allows, in capital
cases, for the protection of innocence against unfounded accusation.
They have lost the right of being previously furnished with a copy of
the indictment, and a list of the government witnesses. They have lost
the right of peremptory challenge; and, notwithstanding the prejudices
which they know have been excited against them, they must show legal
cause of challenge, in each individual case, or else take the jury as
they find it. They have lost the benefit of assignment of counsel by
the court. They have lost the benefit of the Commonwealth's process to
bring in witnesses in their behalf. When to these circumstances it is
added that they are strangers, almost wholly without friends, and
without the means for preparing their defence, it is evident they must
take their trial under great disadvantages.
But without dwelling on these considerations, I proceed, Gentlemen of
the Jury, to ask your attention to those circumstances which cannot but
cast doubts on the story of the prosecutor.
In the first place, it is impossible to believe that a robbery of this
sort could have been committed by three or four men without previous
arrangement and concert, and of course without the knowledge of the
fact that Goodridge would be there, and that he had money. They did not
go on the highway, in such a place, in a cold December's night, for the
general purpose of attacking the first passenger, running the chance of
his being somebody who had money. It is not easy to believe that a gang
of robbers existed, that they acted systematically, communicating
intelligence to one another, and meeting and dispersing as occasion
required, and that this gang had their head-quarters in such a place as
Newburyport. No town is more distinguished for the general correctness
of the habits of its citizens; and it is of such a size that every man
in it may be known to all the rest. The pursuits, occupations, and
habits of every person within it are within the observation of his
neighbors. A suspicious stranger would be instantly observed, and all
his movements could be easily traced. This is not the place to be the
general rendezvous of a gang of robbers. Offenders of this sort hang on
the skirts of large towns. From the commission of their crimes they
hasten into the crowd, and hide themselves in the populousness of great
cities. If it be wholly improbable that a gang existed in such a place
for the purpose of general plunder, the next inquiry is, Is there any
reason to think that there was a special or particular combination, for
the single purpose of robbing the prosecutor? Now it is material to
observe, that not only is there no evidence of any such combination,
but also, that circumstances existed which render it next to impossible
that the defendants could have been parties to such a combination, or
even that they could have any knowledge of the existence of any such
man as Goodridge, or that any person, with money, was expected to come
from the eastward, and to be near Essex Bridge, at or about nine
o'clock, the evening when the robbery is said to have been committed.
One of the defendants had been for some weeks in Newburyport, the other
passed the bridge from New Hampshire at twelve o'clock on the 19th of
December, 1816. At this time, Goodridge had not yet arrived at Exeter,
twelve or fourteen miles from the bridge. How, then, could either of
the defendants know that he was coming? Besides, he says that nobody,
as far as he is aware, knew on the road that he had money, and nothing
happened till he reached Exeter, according to his account, from which
it might be conjectured that such was the case. Here, as he relates it,
it became known that he had pistols; and he must wish you to infer that
the plan to rob him was laid here, at Exeter, by some of the persons
who inferred that he had money from his being armed. Who were these
persons? Certainly not the defendants, or either of them. Certainly not
Taber. Certainly not Jackman. Were they persons of suspicious
characters? Was he in a house of a suspicious character? On this point
he gives us no information. He has either not taken the pains to
inquire, or he chooses not to communicate the result of his inquiries.
Yet nothing could be more important, since he seems compelled to lay
the scene of the plot against him at Exeter, than to know who the
persons were that he saw, or who saw him, at that place. On the face of
the facts now proved, nothing could be more improbable than that the
plan of robbery was concerted at Exeter. If so, why should those who
concerted it send forward to Newburyport to engage the defendants,
especially as they did not know that they were there? What should
induce any persons so suddenly to apply to the defendants to assist in
a robbery? There was nothing in their personal character or previous
history that should induce this.
Nor was there time for all this. If the prosecutor had not lingered on
the road, for reasons not yet discovered, he must have been in
Newburyport long before the time at which he states the robbery to have
been committed. How, then, could any one expect to leave Exeter, come
to Newburyport, fifteen miles, there look out for and find out
assistants for a highway robbery, and get back two miles to a
convenient place for the commission of the crime? That any body should
have undertaken to act thus is wholly improbable; and, in point of
fact, there is not the least proof of any body's travelling, that
afternoon, from Exeter to Newburyport, or of any person who was at the
tavern at Exeter having left it that afternoon. In all probability,
nothing of this sort could have taken place without being capable of
detection and proof. In every particular, the prosecutor has wholly
failed to show the least probability of a plan to rob him having been
laid at Exeter.
But how comes it that Goodridge was near or quite four hours and a half
in travelling a distance which might have been travelled in two hours
or two hours and a half. He says he missed his way, and went the
Salisbury road. But some of the jury know that this could not have
delayed him more than five or ten minutes. He ought to be able to give
some better account of this delay.
Failing, as he seems to do, to create any belief that a plan to rob him
was arranged at Exeter, the prosecutor goes back to Alfred, and says he
saw there a man whom Taber resembles. But Taber is proved to have been
at that time, and at the time of the robbery, in Boston. This is proved
beyond question. It is so certain, that the Solicitor-General has _nol
prossed_ the indictment against him.
There is an end, then, of all pretence of the adoption of a scheme of
robbery at Alfred. This leaves the prosecutor altogether unable to
point out any manner in which it should become known that he had money,
or in which a design to rob him should originate.
It is next to be considered whether the prosecutor's story is either
natural or consistent. But, on the threshold of the inquiry, every one
puts the question, What motive had the prosecutor to be guilty of the
abominable conduct of feigning a robbery? It is difficult to assign
motives. The jury do not know enough of his character or circumstances.
Such things have happened, and may happen again. Suppose he owed money
in Boston, and had it not to pay? Who knows how high he might estimate
the value of a plausible apology? Some men have also a whimsical
ambition of distinction. There is no end to the variety of modes in
which human vanity exhibits itself. A story of this nature excites the
public sympathy. It attracts general attention. It causes the name of
the prosecutor to be celebrated as a man who has been attacked, and,
after a manly resistance, overcome by robbers, and who has renewed his
resistance as soon as returning life and sensation enabled him, and,
after a second conflict, has been quite subdued, beaten and bruised out
of all sense and sensation, and finally left for dead on the field. It
is not easy to say how far such motives, trifling and ridiculous as
most men would think them, might influence the prosecutor, when
connected with any expectation of favor or indulgence, if he wanted
such, from his creditors. It is to be remembered that he probably did
not see all the consequences of his conduct, if his robbery be a
pretence. He might not intend to prosecute any body. But he probably
found, and indeed there is evidence to show, that it was necessary for
him to do something to find out the authors of the alleged robbery. He
manifested no particular zeal on this subject. He was in no haste. He
appears rather to have been pressed by others to do that which, if he
had really been robbed, we should suppose he would have been most
earnest to do, the earliest moment.
But could he so seriously wound himself? Could he or would he shoot a
pistol-bullet through his hand, in order to render the robbery
probable, and to obtain belief in his story? All exhibitions are
subject to accidents. Whether they are serious or farcical, they may,
in some particulars, not proceed exactly as they are designed to do. If
we knew that this shot through the hand, if made by himself, must have
been intentionally made by himself, it would be a circumstance of
greater weight. The bullet went through the sleeve of his coat. He
might have intended it should go through nothing else. It is quite
certain he did not receive the wound in the way he described. He says
he was pulling or thrusting aside the robber's pistol, and while his
hand was on it, it was fired, and the contents passed through his hand.
This could not have been so, because no part of the contents went
through the hand, except the ball. There was powder on the sleeve of
his coat, and from the appearance one would think the pistol to have
been three or four feet from the hand when fired. The fact of the
pistol-bullet being fired through the hand, is doubtless a circumstance
of importance. It may not be easy to account for it; but it is to be
weighed with other circumstances.
It is most extraordinary, that, in the whole case, the prosecutor
should prove hardly any fact in any way but by his own oath. He chooses
to trust every thing on his own credit with the jury. Had he the money
with him which he mentions? If so, his clerks or persons connected with
him in business must have known it; yet no witness is produced. Nothing
can be more important than to prove that he had the money. Yet he does
not prove it. Why should he leave this essential fact without further
support? He is not surprised with this defence, he knew what it would
be. He knew that nothing could be more important than to prove that, in
truth, he did possess the money which he says he lost; yet he does not
prove it. All that he saw, and all that he did, and everything that
occurred to him until the alleged robbery, rests solely on his own
credit. He does not see fit to corroborate any fact by the testimony of
any witness. So he went to New York to arrest Jackman. He did arrest
him. He swears positively that he found in his possession papers which
he lost at the time of the robbery; yet he neither produces the papers
themselves, nor the persons who assisted in the search.
In like manner, he represents his intercourse with Taber at Boston.
Taber, he says, made certain confessions. They made a bargain for a
disclosure or confession on one side, and a reward on the other. But no
one heard these confessions except Goodridge himself. Taber now
confronts him, and pronounces this part of his story to be wholly
false; and there is nobody who can support the prosecutor.
A jury cannot too seriously reflect on this part of the case. There are
many most important allegations of fact, which, if true, could easily
be shown by other witnesses, and yet are not so shown.
How came Mr. Goodridge to set out from Bangor, armed in this formal and
formidable manner? How came he to be so apprehensive of a robbery? The
reason he gives is completely ridiculous. As the foundation of his
alarm, he tells a story of a robbery which he had heard of, but which,
as far as appears, no one else ever heard of; and the story itself is
so perfectly absurd, it is difficult to resist the belief that it was
the product of his imagination at the moment. He seems to have been a
little too confident that an attempt would be made to rob him. The
manner in which he carried his money, as he says, indicated a strong
expectation of this sort. His gold he wrapped in a cambric cloth, put
it into a shot bag, and then into a portmanteau. One parcel of bills,
of a hundred dollars in amount, he put into his pocket-book; another,
of somewhat more than a thousand dollars, he carried next his person,
underneath all his clothes. Having disposed of his money in this way,
and armed himself with two good pistols, he set out from Bangor. The
jury will judge whether this extraordinary care of his money, and this
formal arming of himself to defend it, are not circumstances of a very
suspicious character.
He stated that he did not travel in the night; that he would not so
much expose himself to robbers. He said that, when he came near Alfred,
he did not go into the village, but stopped a few miles short, because
night was coming on, and he would not trust himself and his money out
at night. He represents himself to have observed this rule constantly
and invariably until he got to Exeter. Yet, when the time came for the
robbery, he was found out at night. He left Exeter about sunset,
intending to go to Newburyport, fifteen miles distant, that evening.
When he is asked how this should happen, he says he had no fear of
robbers after he left the District of Maine. He thought himself quite
safe when he arrived at Exeter. Yet he told the jury, that at Exeter he
thought it necessary to load his pistol afresh. He asked for a private
room at the inn. He told the persons in attendance that he wished such
a room for the purpose of changing his clothes. He charged them not to
suffer him to be interrupted. But he now testifies that his object was
not to change his dress, but to put new loading into his pistols. What
sort of a story is this?
He says he now felt himself out of all danger from robbers, and was
therefore willing to travel at night. At the same time, he thought
himself in very great danger from robbers, and therefore took the
utmost pains to keep his pistols well loaded and in good order. To
account for the pains he took about loading his pistols at Exeter, he
says it was his invariable practice, every day after he left Bangor, to
discharge and load again one or both of his pistols; that he never
missed doing this; that he avoided doing it at the inns, lest he should
create suspicion, but that he did it, while alone, on the road, every
day.
How far this is probable the jury will judge. It will be observed that
he gave up his habits of caution as he approached the place of the
robbery. He then loaded his pistols at the tavern, where persons might
and did see him; and he then also travelled in the night. He passed the
bridge over Merrimack River a few minutes before nine o'clock. He was
now at a part of his progress where he was within the observation of
other witnesses, and something could be known of him besides what he
told of himself. Immediately after him passed the two persons with
their wagons, Shaw and Keyser. Close upon them followed the mail-coach.
Now, these wagons and the mail must have passed within three rods, at
most, of Goodridge, at the very time of the robbery. They must have
been very near the spot, the very moment of the attack; and if he was
under the robbers' hands as long as he represents, or if they staid on
the spot long enough to do half what he says they did, they must have
been there when the wagons and the stage passed. At any rate, it is
next to impossible, by any computation of time, to put these carriages
so far from the spot, that the drivers should not have heard the cry of
murder, which he says he raised, or the report of the two pistols,
which he says were discharged. In three quarters of an hour, or an
hour, he returned, and repassed the bridge.
The jury will next naturally look to the appearances exhibited on the
field after the robbery. The portmanteau was there. The witnesses say,
that the straps which fastened it to the saddle had been neither cut
nor broken. They were carefully unbuckled. This was very considerate
for robbers. It had been opened, and its contents were scattered about
the field. The pocket-book, too, had been opened, and many papers it
contained found on the ground. Nothing valuable was lost but money. The
robbers did not think it well to go off at once with the portmanteau
and the pocket-book. The place was so secure, so remote, so
unfrequented; they were so far from the highway, at least one full rod;
there were so few persons passing, probably not more than four or five
then in the road, within hearing of the pistols and the cries of
Goodridge; there being, too, not above five or six dwelling-houses,
full of people, within the hearing of the report of a pistol; these
circumstances were all so favorable to their safety, that the robbers
sat down to look over the prosecutor's papers, carefully examined the
contents of his pocket-book and portmanteau, and took only the things
which they needed! There was money belonging to other persons. The
robbers did not take it. They found out it was not the prosecutor's,
and left it. It may be said to be favorable to the prosecutor's story,
that the money which did not belong to him, and the plunder of which
would seem to be the most probable inducement he could have to feign a
robbery, was not taken. But the jury will consider whether this
circumstance does not bear quite as strongly the other way, and whether
they can believe that robbers could have left this money, either from
accident or design.
The robbers, by Goodridge's account, were extremely careful to search
his person. Having found money in his portmanteau and in his
pocket-book, they still forthwith stripped him to the skin, and
searched until they found the sum which had been so carefully deposited
under his clothes. Was it likely, that, having found money in the
places where it is ordinarily carried, robbers should proceed to search
for more, where they had no reason to suppose more would be found?
Goodridge says that no person knew of his having put his bank-notes in
that situation. On the first attack, however, they proceeded to open
one garment after another, until they penetrated to the treasure, which
was beneath them all.
The testimony of Mr. Howard is material. He examined Goodridge's
pistol, which was found on the spot, and thinks it had not been fired
at all. If this be so, it would follow that the wound through the hand
was not made by this pistol; but then, as the pistol is now discharged,
if it had not been fired, he is not correct in swearing that he fired
it at the robbers, nor could it have been loaded at Exeter, as he
testified.
In the whole case, there is nothing, perhaps, more deserving
consideration, than the prosecutor's statement of the violence which
the robbers used towards him. He says he was struck with a heavy club,
on the back part of his head. He fell senseless to the ground. Three or
four rough-handed villains then dragged him to the fence, and through
it or over it, with such force as to break one of the boards. They then
plundered his money. Presently he came to his senses; perceived his
situation; saw one of the robbers sitting or standing near; he
valiantly sprung upon, and would have overcome him, but the ruffian
called out for his comrades, who returned, and all together they
renewed their attack upon, subdued him, and redoubled their violence.
They struck him heavy blows; they threw him violently to the ground;
they kicked him in the side; they choked him; one of them, to use his
own words, jumped upon his breast. They left him only when they
supposed they had killed him. He went back to Pearson's, at the bridge,
in a state of delirium, and it was several hours before his
recollection came to him. This is his account. Now, in point of fact,
it is certain that on no part of his person was there the least mark of
this beating and wounding. The blow on the head, which brought him
senseless to the ground, neither broke the skin, nor caused any tumor,
nor left any mark whatever. He fell from his horse on the frozen
ground, without any appearance of injury. He was drawn through or over
the fence with such force as to break the rail, but not so as to leave
any wound or scratch on him. A second time he is knocked down, kicked,
stamped upon, choked, and in every way abused and beaten till sense had
departed, and the breath of life hardly remained; and yet no wound,
bruise, discoloration, or mark of injury was found to result from all
this. Except the wound in his hand, and a few slight punctures in his
left arm, apparently made with his own penknife, which was found open
on the spot, there was no wound or mark which the surgeons, upon
repeated examinations, could anywhere discover. This is a story not to
be believed. No matter who tells it, it is so impossible to be true,
that all belief is set at defiance. No man can believe it. All this
tale of blows which left no marks, and of wounds which could not be
discovered, must be the work of imagination. If the jury can believe
that he was robbed, it is impossible they can believe his account of
the manner of it.
With respect, next, to delirium. The jury have heard the physicians.
Two of them have no doubt it was all feigned. Dr. Spofford spoke in a
more guarded manner, but it was very evident his opinion agreed with
theirs. In the height of his raving, the physician who was present said
to others, that he could find nothing the matter with the man, and that
his pulse was perfectly regular. But consider the facts which Dr. Balch
testifies. He suspected the whole of this illness and delirium to be
feigned. He wished to ascertain the truth. While he or others were
present, Goodridge appeared to be in the greatest pains and agony from
his wounds. He could not turn himself in bed, nor be turned by others,
without infinite distress. His mind, too, was as much disordered as his
body. He was constantly raving about robbery and murder. At length the
physicians and others withdrew, and left him alone in the room. Dr.
Balch returned softly to the door, which he had left partly open, and
there he had a full view of his patient, unobserved by him. Goodridge
was then very quiet. His incoherent exclamations had ceased. Dr. Balch
saw him turn over without inconvenience. Pretty soon he sat up in bed,
and adjusted his neckcloth and his hair. Then, hearing footsteps on the
staircase, he instantly sunk into the bed again; his pains all
returned, and he cried out against robbers and murderers as loud as
ever. Now, these facts are all sworn to by an intelligent witness, who
cannot be mistaken in them; a respectable physician, whose veracity or
accuracy is in no way impeached or questioned. After this, it is
difficult to retain any good opinion of the prosecutor. Robbed or not
robbed, this was his conduct; and such conduct necessarily takes away
all claim to sympathy and respect. The jury will consider whether it
does not also take away all right to be believed in anything. For if
they should be of opinion that in any one point he has intentionally
misrepresented facts, he can be believed in nothing. No man is to be
convicted on the testimony of a witness whom the jury has found
wilfully violating the truth in any particular.
The next part of the case is the conduct of the prosecutor in
attempting to find out the robbers, after he had recovered from his
illness. He suspected Mr. Pearson, a very honest, respectable man, who
keeps the tavern at the bridge. He searched his house and premises. He
sent for a conjuror to come, with his metallic rods and witch-hazel, to
find the stolen money. Goodridge says now, that he thought he should
find it, if the conjuror's instruments were properly prepared. He
professes to have full faith in the art. Was this folly, or fraud, or a
strange mixture of both? Pretty soon after the last search, gold pieces
were actually found near Mr. pearson's house, in the manner stated by
the female witness. How came they there? Did the robber deposit them
there? That is not possible. Did he accidentally leave them there? Why
should not a robber take as good care of his money as others? It is
certain, too, that the gold pieces were not put there at the time of
the robbery, because the ground was then bare; but when these pieces
were found, there were several inches of snow below them. When
Goodridge searched here with his conjuror, he was on this spot, alone
and unobserved, as he thought. Whether he did not, at that time, drop
his gold into the snow, the jury will judge. When he came to this
search, he proposed something very ridiculous. He proposed that all
persons about to assist in the search should be examined, to see that
they had nothing which they could put into Pearson's possession, for
the purpose of being found there. But how was this examination to be
made? Why, truly, Goodridge proposed that every man should examine
himself, and that, among others, he would examine himself, till he was
satisfied he had nothing in his pockets which he could leave at
pearson's, with the fraudulent design of being afterwards found there,
as evidence against pearson. What construction would be given to such
conduct?
As to Jackman, Goodridge went to New York and arrested him. In his room
he says he found paper coverings of gold, with his own figures on them,
and pieces of an old and useless receipt, which he can identify, and
which he had in his possession at the time of the robbery. He found
these things lying on the floor in Jackman's room. What should induce
the robbers, when they left all other papers, to take this receipt? And
what should induce Jackman to carry it to New York, and keep it, with
the coverings of the gold, in a situation where it was likely to be
found, and used as evidence against him?
There is no end to the series of improbabilities growing out of the
prosecutor's story.
One thing especially deserves notice. Wherever Goodridge searches, he
always finds something; and what he finds, he always can identify and
swear to, as being his. The thing found has always some marks by which
he knows it. Yet he never finds much. He never finds the mass of his
lost treasure. He finds just enough to be evidence, and no more.
These are the circumstances which tend to raise doubts of the truth of
the prosecutor's relation. It is for the jury to say, whether it would
be safe to convict any man for this robbery until these doubts shall be
cleared up. No doubt they are to judge him candidly; but they are not
to make every thing yield to a regard to his reputation, or a desire to
vindicate him from the suspicion of a fraudulent prosecution.
He stands like other witnesses, except that he is a very interested
witness; and he must hope for credit, if at all, from the consistency
and general probability of the facts to which he testifies. The jury
will not convict the prisoners to save the prosecutor from disgrace. He
has had every opportunity of making out his case. If any person in the
State could have corroborated any part of his story, that person he
could have produced. He has had the benefit of full time, and good
counsel, and of the Commonwealth's process, to bring in his witnesses.
More than all, he has had an opportunity of telling his own story, with
the simplicity that belongs to truth, if it were true, and the
frankness and earnestness of an honest man, if he be such. It is for
the jury to say, under their oaths, how he has acquitted himself in
these particulars, and whether he has left their minds free from doubt
as to the truth of his narration.
But if Goodridge were really robbed, is there satisfactory evidence
that the defendants had a hand in the commission of this offence? The
evidence relied on is the finding of the money in their house. It
appears that these defendants lived together, and, with a sister,
constituted one family. Their father lived in another part of the same
house, and with his wife constituted another and distinct family. In
this house, some six weeks after the robbery, the prosecutor made a
search; and the result has been stated by the witnesses. Now, if the
money had been passed or used by the defendants it might have been
conclusive. If found about their persons, it might have been very
strong proof. But, under the circumstances of this case, the mere
finding of money in their house, and that only in places where the
prosecutor had previously been, is no evidence at all. With respect to
the gold pieces, it is certainly true that they were found in
Goodridge's track. They were found only where he had been, and might
have put them.
When the sheriff was in the house and Goodridge in the cellar, gold was
found in the cellar. When the sheriff was up stairs and Goodridge in
the rooms below, the sheriff was called down to look for money where
Goodridge directed, and there money was found. As to the bank-note, the
evidence is not quite so clear. Mr. Leavitt says he found a note in a
drawer in a room in which none of the party had before been; that he
thought it an uncurrent or counterfeit note, and not a part of
Goodridge's money, and left it where he found it, without further
notice. An hour or two afterward, Upton perceived a note in the same
drawer, Goodridge being then with or near him, and called to Leavitt.
Leavitt told him that he had discovered that note before, but that it
could not be Goodridge's. It was then examined. Leavitt says he looked
at it, and saw writing on the back of it. Upton says he looked at it,
and saw writing on the back of it. He says also that it was shown to
Goodridge, who examined it in the same way that he and Leavitt examined
it. None of the party at this time suspected it to be Goodridge's. It
was then put into Leavitt's pocket-book, where it remained till
evening, when it was taken out at the tavern; and then it turns out to
be, plainly and clearly, one of Goodridge's notes, and has the name of
"James Poor, Bangor," in Goodridge's own handwriting, on the back of
it. The first thing that strikes one in this account is, Why was not
this discovery made at the time? Goodridge was looking for notes, as
well as gold. He was looking for Boston notes, for such he had lost. He
was looking for ten-dollar notes, for such he had lost. He was looking
for notes which he could recognize and identify. He would, therefore,
naturally be particularly attentive to any writing or marks upon such
as he might find. Under these circumstances, a note is found in the
house of the supposed robbers. It is a Boston note, it is a ten-dollar
note, it has writing on the back of it; that writing is the name of his
town and the name of one of his neighbors; more than all, that writing
is his own handwriting! Notwithstanding all this, neither Goodridge,
nor Upton, nor the sheriff, examined it so as to see whether it was
Goodridge's money. Notwithstanding it so fully resembled, in all
points, the money they were looking for, and notwithstanding they also
saw writing on the back of it, which, they must know, if they read it,
would probably have shown where it came from, neither of them did so
far examine it as to see any proof of its being Goodridge's.
This is hardly to be believed. It must be a pretty strong faith in the
prosecutor that could credit this story. In every part of it, it is
improbable and absurd. It is much more easy to believe that the note
was changed. There might have been, and there probably was, an
uncurrent or counterfeit note found in the drawer by Leavitt. He
certainly did not at the time think it to be Goodridge's, and he left
it in the drawer where he found it. Before he saw it again, the
prosecutor had been in that room, and was in or near it when the
sheriff was again called in, and asked to put that bill in his
pocket-book. How do the jury know that this was the same note which
Leavitt had before seen? Or suppose it was. Leavitt carried it to
Coffin's; in the evening he produced it, and, after having been handed
about for some time among the company, it turns out to be Goodridge's
note, and to have upon it infallible marks of identity. How do the jury
know that a sleight of hand had not changed the note at Coffin's? It is
sufficient to say, the note might have been changed. It is not certain
that this is the note which Leavitt first found in the drawer, and this
not being certain, it is not proof against the defendants.
Is it not extremely improbable, if the defendants are guilty, that they
should deposit the money in the places where it was found? Why should
they put it in small parcels in so many places, for no end but to
multiply the chances of detection? Why, especially, should they put a
doubloon in their father's pocket-book? There is no evidence, nor any
ground of suspicion, that the father knew of the money being in his
pocket-book. He swears he did not know it. His general character is
unimpeached, and there is nothing against his credit. The inquiry at
Stratham was calculated to elicit the truth; and, after all, there is
not the slightest reason to suspect that he knew that the doubloon was
in his pocket-book. What could possibly induce the defendants to place
it there? No man can conjecture a reason. On the other hand, if this is
a fraudulent proceeding on the part of the prosecutor, this
circumstance could be explained. He did not know that the pocket-book,
and the garment in which it was found, did not belong to one of the
defendants. He was as likely, therefore, to place it there as
elsewhere. It is very material to consider that nothing was found in
that part of the house which belonged to the defendants. Every thing
was discovered in the father's apartments. They were not found,
therefore, in the possession of the defendants, any more than if they
had been discovered in any other house in the neighborhood. The two
tenements, it is true, were under the same roof; but they were not on
that account the same tenements. They were as distinct as any other
houses. Now, how should it happen that the several parcels of money
should all be found in the father's possession? He is not suspected,
certainly there is no reason to suspect him, of having had any hand
either in the commission of the robbery or the concealing of the goods.
He swears he had no knowledge of any part of this money being in his
house. It is not easy to imagine how it came there, unless it be
supposed to have been put there by some one who did not know what part
of the house belonged to the defendants and what part did not.
The witnesses on the part of the prosecution have testified that the
defendants, when arrested, manifested great agitation and alarm;
paleness overspread their faces, and drops of sweat stood on their
temples. This satisfied the witnesses of the defendants' guilt, and
they now state the circumstances as being indubitable proof. This
argument manifests, in those who use it, an equal want of sense and
sensibility. It is precisely fitted to the feeling and the intellect of
a bum-bailiff. In a court of justice it deserves nothing but contempt.
Is there nothing that can agitate the frame or excite the blood but the
consciousness of guilt? If the defendants were innocent, would they not
feel indignation at this unjust accusation? If they saw an attempt to
produce false evidence against them, would they not be angry? And,
seeing the production of such evidence, might they not feel fear and
alarm? And have indignation, and anger, and terror, no power to affect
the human countenance or the human frame?
Miserable, miserable, indeed, is the reasoning which would infer any
man's guilt from his agitation when he found himself accused of a
heinous offence; when he saw evidence which he might know to be false
and fraudulent brought against him; when his house was filled, from the
garret to the cellar, by those whom he might esteem as false witnesses;
and when he himself, instead of being at liberty to observe their
conduct and watch their motions, was a prisoner in close custody in his
own house, with the fists of a catch-poll clenched upon his throat.
The defendants were at Newburyport the afternoon and evening of the
robbery. For the greater part of the time they show where they were,
and what they were doing. Their proof, it is true, does not apply to
every moment. But when it is considered that, from the moment of their
arrest, they have been in close prison, perhaps they have shown as much
as could be expected. Few men, when called on afterwards, can remember,
and fewer still can prove, how they have passed every half-hour of an
evening. At a reasonable hour they both came to the house where Laban
had lodged the night before. Nothing suspicious was observed in their
manner or conversation. Is it probable they would thus come
unconcernedly into the company of others, from a field of robbery, and,
as they must have supposed, of murder, before they could have
ascertained whether the stain of blood was not on their garments? They
remained in the place a part of the next day. The town was alarmed; a
strict inquiry was made of all strangers, and of the defendants among
others. Nothing suspicious was discovered. They avoided no inquiry, nor
did they leave the town in any haste. The jury has had an opportunity
of seeing the defendants. Does their general appearance indicate that
hardihood which would enable them to act this cool, unconcerned part?
Is it not more likely they would have fled?
From the time of the robbery to the arrest, five or six weeks, the
defendants were engaged in their usual occupations. They are not found
to have passed a dollar of money to any body. They continued their
ordinary habits of labor. No man saw money about them, nor any
circumstance that might lead to a suspicion that they had money.
Nothing occurred tending in any degree to excite suspicion against
them. When arrested, and when all this array of evidence was brought
against them, and when they could hope in nothing but their innocence,
immunity was offered them again if they would confess. They were
pressed, and urged, and allured, by every motive which could be set
before them, to acknowledge their participation in the offence, and to
bring out their accomplices. They steadily protested that they could
confess nothing because they knew nothing. In defiance of all the
discoveries made in their house, they have trusted to their innocence.
On that, and on the candor and discernment of an enlightened jury, they
still rely. If the jury are satisfied that there is the highest
improbability that these persons could have had any previous knowledge
of Goodridge, or been concerned in any previous concert to rob him; if
their conduct that evening and the next day was marked by no
circumstances of suspicion; if from that moment until their arrest
nothing appeared against them; if they neither passed money, nor are
found to have had money; if the manner of the search of their house,
and the circumstances attending it, excite strong suspicions of unfair
and fraudulent practices; if, in the hour of their utmost peril, no
promises of safety could draw from the defendants any confession
affecting themselves or others, it will be for the jury to say whether
they can pronounce them guilty.
The Dartmouth College Case.
The general question is, whether the acts of the legislature of New
Hampshire of the 27th of June, and of the 18th and 26th of December,
1816, are valid and binding on the plaintiffs, _without their
acceptance or assent_.
The charter of 1769 created and established a corporation, to consist
of twelve persons, and no more; to be called the "Trustees of Dartmouth
College."
After the institution thus created and constituted had existed,
uninterruptedly and usefully, nearly fifty years, the legislature of
New Hampshire passed the acts in question.
The first act makes the twelve trustees under the charter, and nine
other individuals, to be appointed by the Governor and Council, a
corporation, by a new name; and to this new corporation transfers all
the _property, rights, powers, liberties, and privileges_ of the old
corporation; with further power to establish new colleges and an
institute, and to apply all or any part of the funds to these purposes;
subject to the power and control of a board of twenty-five overseers,
to be appointed by the Governor and Council.
The second act makes further provisions for executing the objects of
the first, and the last act authorizes the defendant, the treasurer of
the plaintiffs, to retain and hold their property, against their will.
If these acts are valid, the old corporation is abolished, and a new
one created. The first act does, in fact, if it can have any effect,
create a new corporation, and transfer to it all the property and
franchises of the old. The two corporations are not the same in
anything which essentially belongs to the existence of a corporation.
They have different names, and different powers, rights, and duties.
Their organization is wholly different. The powers of the corporation
are not vested in the same, or similar hands. In one, the trustees are
twelve, and no more. In the other, they are twenty-one. In one, the
power is in a single board. In the other, it is divided between two
boards. Although the act professes to include the old trustees in the
new corporation, yet that was without their assent, and against their
remonstrance; and no person can be compelled to be a member of such a
corporation against his will. It was neither expected nor intended that
they should be members of the new corporation. The act itself treats
the old corporation as at an end, and, going on the ground that all its
functions have ceased, it provides for the first meeting and
organization of the new corporation. It expressly provides, also, that
the new corporation shall have and hold all the property of the old; a
provision which would be quite unnecessary upon any other ground, than
that the old corporation was dissolved. But if it could be contended
that the effect of these acts was not entirely to abolish the old
corporation, yet it is manifest that they impair and invade the rights,
property, and powers of the trustees under the charter, as a
corporation, and the legal rights, privileges, and immunities which
belong to them, as individual members of the corporation.
The twelve trustees were the _sole_ legal owners of all the property
acquired under the charter. By the acts, others are admitted, against
_their_ will, to be joint owners. The twelve individuals who are
trustees were possessed of all the franchises and immunities conferred
by the charter. By the acts, _nine_ other trustees and _twenty-five_
overseers are admitted, against their will, to divide these franchises
and immunities with them.
If, either as a corporation or as individuals, they have any legal
rights, this forcible intrusion of others violates those rights, as
manifestly as an entire and complete ouster and dispossession. These
acts alter the whole constitution of the corporation. They affect the
rights of the whole body as a corporation, and the rights of the
individuals who compose it. They revoke corporate powers and
franchises. They alienate and transfer the property of the college to
others. By the charter, the trustees had a right to fill vacancies in
their own number. This is now taken away. They were to consist of
twelve, and, by express provision, of no more. This is altered. They
and their successors, appointed by themselves, were for ever to hold
the property. The legislature has found successors for them, before
their seats are vacant. The powers and privileges which the twelve were
to exercise exclusively, are now to be exercised by others. By one of
the acts, they are subjected to heavy penalties if they exercise their
offices, or any of those powers and privileges granted them by charter,
and which they had exercised for fifty years. They are to be punished
for not accepting the new grant and taking its benefits. This, it must
be confessed, is rather a summary mode of settling a question of
constitutional right. Not only are new trustees forced into the
corporation, but new trusts and uses are created. The college is turned
into a university. Power is given to create new colleges, and, to
authorize any diversion of the funds which may be agreeable to the new
boards, sufficient latitude is given by the undefined power of
establishing an institute. To these new colleges, and this institute,
the funds contributed by the founder, Dr. Wheelock, and by the original
donors, the Earl of Dartmouth and others, are to be applied, in plain
and manifest disregard of the uses to which they were given.
The president, one of the old trustees, had a right to his office,
salary, and emoluments, subject to the twelve trustees alone. His title
to these is now changed, and he is made accountable to new masters. So
also all the professors and tutors. If the legislature can at pleasure
make these alterations and changes in the rights and privileges of the
plaintiffs, it may, with equal propriety, abolish these rights and
privileges altogether. The same power which can do any part of this
work can accomplish the whole. And, indeed, the argument on which these
acts have been hitherto defended goes altogether on the ground, that
this is such a corporation as the legislature may abolish at pleasure;
and that its members have _no rights, liberties, franchises, property,
or privileges_, which the legislature may not revoke, annul, alienate,
or transfer to others, whenever it sees fit.
It will be contended by the plaintiffs, that these acts are not valid
and binding on them without their assent,--
1. Because they are against common right, and the Constitution of New
Hampshire.