Professional Character particularly in Reference to Constitutional
Law.--The Dartmouth College Case argued at Washington in 1818.--Mr.
Ticknor's Description of that Argument.--The Case of Gibbons and
Ogden in 1824.--Mr. Justice Wayne's Allusion to that Case in
1847.--The Case of Ogden and Saunders in 1827.--The Case of the
Proprietors of the Charles River Bridge.--The Alabama Bank
Case.--The Case relative to the Boundary between Massachusetts and
Rhode Island.--The Girard Will Case.--The Case of the Constitution
of Rhode Island.--General Remarks on Mr. Webster's Practice in the
Supreme Court of the United States.--Practice in the State
Courts.--The Case of Goodridge,--and the Case of Knapp.
With Mr. Webster's removal to Boston commenced a period of five or
six years' retirement from active political life, during which time,
with a single exception which will be hereafter alluded to, he
filled no public office, and devoted himself exclusively to the duties
of his profession. It was accordingly within this period that his
reputation as a lawyer was fixed and established. The promise of his
youth, and the expectations of those who had known him as a student,
were more than fulfilled. He took a position as a counsellor and an
advocate, above which no one has ever risen in the country. A large
share of the best business of New England passed into his hands; and the
veterans of the Boston bar admitted him to an entire equality of
standing, repute, and influence.
Besides the reputation which he acquired in the ordinary routine of
practice, Mr. Webster, shortly after his removal to Boston, took the
lead in establishing what might almost be called a new school of
constitutional law. It fell to his lot to perform a prominent part in
unfolding a most important class of constitutional doctrines, which,
either because occasion had not drawn them forth, or the jurists of a
former period had failed to deduce and apply them, had not yet grown
into a system. It was reserved for Mr. Webster to distinguish himself
before most, if not all, of his contemporaries, in this branch of his
profession. It may be mentioned as a somewhat curious coincidence, that
the case in which he made his first great effort in this direction arose
in his native State, and concerned the College in which he had been
educated.
In the months of June and December, 1816, the legislature of New
Hampshire passed acts altering the charter of Dartmouth College (of
which the name was changed to Dartmouth University), enlarging the
number of the trustees, and generally reorganizing the corporation.
These acts, although passed without the consent and against the protest
of the Trustees of the College, went into operation. The newly created
body took possession of the corporate property, and assumed the
administration of the institution. The old board were all named as
members of the new corporation, but declined acting as such, and brought
an action against the treasurer of the new board for the books of
record, the original charter, the common seal, and other corporate
property of the College.
The action was commenced in the Court of Common Pleas for Grafton
County, in February, 1817, and carried immediately to the Superior
Court, in May of the same year. The general issue was pleaded by the
defendants and joined by the plaintiffs. The case turned upon the point,
whether the acts of the legislature above referred to were binding upon
the corporation without their assent, and not repugnant to the
Constitution of the United States. It was first argued by Messrs.
Jeremiah Mason and Jeremiah Smith for the plaintiffs, and by the
Attorney-General of New Hampshire for the defendants; and subsequently
by Messrs. Mason, Smith, and Webster for the plaintiffs, and the
Attorney-General and Mr. L Bartlett for the defendants. At the November
term it was decided by the Superior Court of New Hampshire, in an
opinion delivered by Chief Justice Richardson, that the acts of the New
Hampshire legislature were valid and constitutional. In giving his
opinion on the case, the Chief Justice said: "The cause has been argued
on both sides with uncommon learning and ability, and we have witnessed
a display of talents and eloquence upon this occasion in the highest
degree honorable to the profession of the law in this State."[6]
The case thus decided in the Superior Court of New Hampshire in favor of
the validity of the State laws, was carried by writ of error to the
Supreme Court of the United States, where, on the 10th of March, 1818,
it came on for argument before all the judges, Mr. Webster and Mr.
(afterwards Judge) Hopkinson for the plaintiffs, and Mr. J. Holmes of
Maine and the Attorney-General, Wirt, for the defendants in error. This
was perhaps the first occasion in this country on which a question
precisely of this kind had come up, and it is stated that, when one of
the court had run his eye cursorily over the record, he said that he did
not see how any thing important could be urged by the plaintiffs in
error.
It devolved upon Mr. Webster, as junior counsel, to open the case, and
it is scarcely necessary to say to any one who has read the report of
his argument, that, if such an impression as that just alluded to
existed in the mind of any of the court, it must have been immediately
dispelled. The ground was broadly taken, that the acts in question were
not only against common right and the constitution of New Hampshire, but
also, and this was the leading principle, against the provision of the
Constitution of the United States which forbids the individual States
from passing laws that impair the obligation of contracts. Under the
first head, the entire English law relative to educational foundations
was unfolded by Mr. Webster, and it was shown that colleges, unless
otherwise specifically constituted by their charters, were private
eleemosynary corporations, over whose property, members, and franchises
the crown has no control, except by due process of law, for acts
inconsistent with their charters. The whole learning of the subject was
brought to bear with overwhelming weight on this point.
The second main point required to be less elaborately argued; namely,
that such a charter is a contract which it is not competent for a State
to annul. The argument throughout was pursued with a closeness and vigor
which have been rarely witnessed in our courts. The topics were beyond
the usual range of forensic investigation in this country. The
constitutional principles sought to be applied were of commanding
importance. Great public expectation was awakened by the novelty and
magnitude of the case. The personal connection of Mr. Webster with
Dartmouth College as the place of his education gave a fervor to his
manner, which added, no doubt, to the effect of the reasoning. On this
point Mr. Ticknor expresses himself as follows:--
"Mr. Webster's argument is given in this volume [the first
collection of his works], that is, we have there the technical
outline; the dry skeleton of it. But those who heard him when it was
originally delivered still wonder how such dry bones could ever
have lived with the power they there witnessed and felt. He
opened his cause, as he always does, with perfect simplicity in
the general statement of its facts, and then went on to unfold
the topics of his argument in a lucid order, which made each
position sustain every other. The logic and the law were rendered
irresistible. But as he advanced, his heart warmed to the subject
and the occasion. Thoughts and feelings that had grown old with
his best affections rose unbidden to his lips. He remembered that
the institution he was defending was the one where his own youth
had been nurtured; and the moral tenderness and beauty this gave to
the grandeur of his thoughts, the sort of religious sensibility
it imparted to his urgent appeals and demands for the stern
fulfilment of what law and justice required, wrought up the whole
audience to an extraordinary state of excitement. Many betrayed
strong agitation, many were dissolved in tears. Prominent among them
was that eminent lawyer and statesman, Robert Goodloe Harper, who
came to him when he resumed his seat, evincing emotions of the
highest gratification. When he ceased to speak, there was a
perceptible interval before any one was willing to break the
silence; and when that vast crowd separated, not one person of the
whole number doubted that the man who had that day so moved,
astonished, and controlled them, had vindicated for himself a
place at the side of the first jurists of the country."[7]
The opinion of the court, unanimous; with the exception of Justice
Duvall, was pronounced by Chief Justice Marshall in the term for
1819, declaring the acts of the legislature of New Hampshire to be
unconstitutional and invalid, and reversing the opinion of the court
below. By this opinion the law of the land in reference to collegiate
charters was firmly established. Henceforward our colleges and
universities and their trustees, unless provision to the contrary is
made in their acts of incorporation, stand upon the broad basis of
common right and justice; holding in like manner as individuals their
property and franchises by a firm legal tenure, and not subject to
control or interference on the part of the local legislatures on the
vague ground that public institutions are at the mercy of the
government. That such is the recognized law of the land is owing in
no small degree to the ability with which the Dartmouth College case
was argued by Mr. Webster. The battle fought and the victory gained in
this case were sought and gained for every college and university, for
every academy and school, in the United States, endowed with property
or possessed of chartered rights. It ought to be mentioned, to the
credit of the State of New Hampshire, that she readily acquiesced in the
decision of the Supreme Court of the United States, and made no attempt
to sustain her recent legislation.
This celebrated cause, argued with such success before the highest
tribunal in the country, established Mr. Webster's position in the
profession. It placed him at once with Emmett and Pinkney and Wirt, in
the front rank of the American bar, and, though considerably the
youngest of this illustrious group, on an equality with the most
distinguished of them. He was henceforward retained in almost every
considerable cause argued at Washington. No counsel in the United States
has probably been engaged in a larger portion of the business brought
before that tribunal. While Mr. Webster as a politician and a statesman
has performed an amount of intellectual labor, as is abundantly shown in
these volumes, sufficient to form the sole occupation of an active life,
there is no doubt that his arguments to the court and his addresses to
the jury in important suits at law would, if they had been reported like
his political speeches, have filled a much greater space.
It would exceed the limits of this sketch to allude in detail to all
the cases argued by Mr. Webster in the Supreme Court of the United
States; still less would it be practicable to trace him through his
labors in the State courts. We can barely mention a few of the more
considerable causes. The case of Gibbons and Ogden, in 1824, is one of
great celebrity. In this case the grant by the State of New York to
the assignees of Fulton, of an exclusive right to navigate the
rivers, harbors, and bays of New York by steam, was called in question,
and was decided to be unconstitutional, after having been maintained by
all the tribunals of that great and respectable State. The decision of
this great case turned upon the principle, that the grant of such a
monopoly of the right to enter a portion of the navigable waters of
the Union was an encroachment, by the State, upon the power "to
regulate commerce,"----a power reserved by the Constitution to Congress,
and in its nature exclusive. The cause was argued by Messrs. Webster
and Wirt for the plaintiffs, and by Messrs. Oakley and Emmett for the
defendants in error,--an array of talent worthy the magnitude of the
interests at stake. The decision of the court was against the monopoly.
Few cases in the annals of federal jurisprudence are of equal
importance; none, perhaps, was ever argued with greater ability. In the
course of his discussion, Mr. Webster said, with great felicity of
illustration, that, by the establishment of the Constitution, the
commerce of this whole country had become a _unit_, a form of
expression used with approbation by Chief Justice Marshall in
delivering the opinion of the court.
A very distinguished compliment was paid to Mr. Webster's argument in
this case, a quarter of a century after its delivery, by Mr. Justice
Wayne of the Supreme Court of the United States. On the occasion of Mr.
Webster's visit to the South, in the spring of 1847, he was received
with public honors, among other places, at Savannah. He was there
addressed by Judge Wayne on behalf of his fellow-citizens. In the course
of his remarks on that occasion, Judge Wayne alluded to Mr. Webster's
line of argument in this case in the following manner:--
"From one of your constitutional suggestions, every man in the land
has been more or less benefited. We allude to it with the greater
pleasure, because it was in a controversy begun by a Georgian in
behalf of the constitutional rights of the citizen. When the late
Mr. Thomas Gibbons determined to put to hazard a large part of his
fortune in testing the constitutionality of the laws of New York
limiting the navigation of the waters of that State to steamers
belonging to a company, his own interest was not so much concerned
as the right of every citizen to use a coasting license upon the
waters of the United States, in whatever way their vessels might be
propelled. It was a sound view of the law, but not broad enough for
the occasion. It is not unlikely that the case would have been
decided upon it, if you had not insisted that it should be put upon
the broader constitutional ground of commerce and navigation. The
court felt the application and force of your reasoning, and it made
a decision releasing every creek, and river, lake, bay, and harbor
in our country from the interference of monopolies, which had
already provoked unfriendly legislation between some of the States,
and which would have been as little favorable to the interest of
Fulton, as they were unworthy his genius."
The case of Ogden and Saunders, in 1827, brought in question the
right of a State to pass an insolvent law. It was of course a case
of high constitutional law, belonging to the same general class with
those just mentioned, and relating to the limit of the powers of the
several States, in reference to matters confided by the Constitution to
the general government. This cause was argued by Mr. Clay and Mr. David
B. Ogden of New York for the plaintiffs, and by Mr. Webster and Mr.
Henry Wheaton for the defendants in error. In his argument in this
case, Mr. Webster maintained the entire unconstitutionality of State
bankrupt laws. This was a step in advance of the doctrines laid down
by the Supreme Court of the United States in the case of Sturges and
Crowninshield, nor did the court on the present occasion incline to go
further than they had done in that case. They were divided in opinion,
but a majority of the judges held, that, although it was not competent
to a State to pass a law discharging a debtor from the obligation of
payment, they might pass a law to discharge him from imprisonment on
personal execution. The Chief Justice and Judge Story were the
minority of the court, and the opinion of the Chief Justice sustained
the principle of Mr. Webster's argument, which is, in fact, usually
regarded as not falling below his most successful forensic efforts. The
manner in which he meets the argument in favor of a prospective State
insolvent law, namely, that such a law cannot impair the obligation of a
contract because it is a part of the contract, may be quoted as a
specimen of the acutest dialectics brought in aid of the broadest views
of constitutional law.
In the year 1836, Mr. Webster argued at Washington the great cause of
the proprietors of Charles River Bridge. This well-remembered case was a
suit in chancery commenced in the Supreme Court of Massachusetts, where
the bill was dismissed by a decree _pro forma_, the members of that
court being equally divided in opinion. A writ of error was taken to the
Supreme Court of the United States, on the ground that the rights of the
proprietors of Charles River Bridge under their charter had been
violated by the legislature, in authorizing the erection of Warren
Bridge. The cause was argued at Washington, in 1836, and, having been
then held under advisement by the court for a year, was, upon difference
of opinion among the judges, ordered to be again argued, which was done
in 1837. This was another of the great constitutional cases argued by
Mr. Webster before the Supreme Court of the United States. The abstract
principles of the case were perhaps as clear as in those to which we
have alluded; but there were practical difficulties, no doubt, in their
application to restrain the right of a legislature to grant an act of
incorporation, in the usual form, for the construction of a new bridge,
on the ground of interference with some prior similar franchise. The
opinion of the court, adverse to the complainants, was delivered by
Chief Justice Taney. Mr. Justice McLean was clearly of opinion that the
merits of the case were with the complainants, but that the Supreme
Court of the United States had no jurisdiction over it. Mr. Justice
Story dissented from the majority, and sustained the doctrines advanced
by Mr. Webster in a very learned and powerfully reasoned opinion.
In 1839 the constitutional rights of the Bank of the United States (so
called), which was incorporated by the State of Pennsylvania after the
termination of the Congressional charter, were drawn in question by a
case from the State of Alabama, in which the right of a corporation or a
citizen in one State to perform any legal act in another was asserted by
Mr. Webster, and his argument was sustained by the court. Not long
afterwards the controversy between Massachusetts and Rhode Island
relative to their boundary, a controversy running back to the earliest
periods of their colonial history, was brought before the Supreme Court,
at Washington, and argued by Mr. Webster for the Commonwealth of
Massachusetts.
In 1844 the important case relative to the validity of Mr. Girard's
bequest of the greater part of his estate to the city of Philadelphia,
for the foundation of a college for orphans, was argued by Mr. Webster
before the Supreme Court, at Washington, for the heirs at law. One of
the grounds on which the bequest was impeached by them was, the
exclusion by the will of all ecclesiastics, missionaries, or ministers,
of whatever sect, from all offices in the college, and even from
admission within the premises as visitors. So impressive was Mr.
Webster's argument upon the importance of making provision for religious
instruction in all institutions for education, that a meeting of the
citizens of Washington belonging to different religious denominations
was held, at which a resolution was passed expressing the opinion
entertained by the meeting of the great value of Mr. Webster's argument,
"in demonstrating the vital importance of Christianity to the success of
our free institutions, and that the general diffusion of that argument
among the people of the United States is a matter of deep public
interest." A committee of eight gentlemen of the different denominations
of Christians in the city was appointed to wait upon Mr. Webster, and
request him to prepare for the press the report of that portion of his
argument in which this important topic is treated.
In the month of January, 1848, the great Rhode Island case was brought
before the Supreme Court of the United States, and argued by Mr.
Webster for the chartered government of the State, and against the
insurrectionary government, to which an abortive attempt had been
made to give the form of a constitution, by a pretended act of the
popular will. The true principles of popular and constitutional
government are explored with unsurpassed sagacity in this argument. Some
copies of the report of it in a pamphlet form reached Europe during
the memorable year of 1848, when the Continent was convulsed with
revolutionary struggles from one end to the other. It was there
regarded as a most seasonable and instructive commentary on the nature
of constitutional obligations, and of the rights of the people to modify
their institutions of government.
A large portion of the causes argued by Mr. Webster belong to the
province of constitutional law, and have their origin in that partition
of powers which exists between the State governments and the government
of the United States, each clothed with sovereignty in its appropriate
sphere, each subject to limitations resulting from its relations to the
other, each possessing its legislative bodies, its judicial tribunals,
its executive authorities, and consequently armed with the means of
asserting its rights, and both combined into one great political system.
In such a system it cannot but happen that questions of conflicting
jurisdiction should arise. When we consider that the powers of these two
orders of government are defined in written constitutions of recent
date, and that all the direct precedents of administration must of
necessity, at the oldest, be still more recent, we cannot but wonder at
the small number of disputed cases which have arisen, and at the
sagacity, forethought, and practical wisdom of the founders of our
government, who made such admirable provision for the harmonious
operation of the system.
Still, however, it was impossible that the class of cases provided for
by the appellate jurisdiction of the Supreme Court of the United States
should not present themselves, and no small portion of Mr. Webster's
forensic life has been devoted to their investigation. It is unnecessary
to state that they are questions of an elevated character. They often
involve the validity of the legislative acts and judicial decisions of
governments substantially independent, as they may in fact the
constitutionality of the acts of Congress itself. No court in England
will allow any thing, not even a treaty with a foreign government, or
the most undoubted principles of the law of nations, to be pleaded
against an act of Parliament. The Supreme Court of the United States
entertains the question not only of the constitutionality of the acts of
the legislatures of States possessing most of the attributes of
sovereignty, but also of the constitutionality of the acts of the
national legislature, which possesses those attributes of sovereignty
which are denied to the States. These circumstances give great dignity
to its deliberations, and tend materially to elevate the character of a
constitutional lawyer in the United States.[8] Professional training in
England has not been deemed the best school of statesmanship; but it
will be readily perceived, that in this country a great class of
questions, and those of the highest importance, belong alike to the
senate and the court. Every one must feel that, in the case of Mr.
Webster, the lawyer and the statesman have contributed materially to
form each other.
Before quite quitting this subject, it may be proper to allude to Mr.
Webster's professional labors of another class, in the ordinary State
tribunals. Employed as counsel in all the most important cases during a
long professional life, it is hardly necessary to say, that his
investigations have extended to every department of the law, and that
his speeches to the jury and arguments to the court have evinced a
mastery of the learning and a control of the logic belonging to it,
which are in most cases to be attained only by the exclusive study and
practice of a life. The jurist and the advocate are so mingled in Mr.
Webster's professional character, that it is not easy to say which
predominates. His fervid spirit and glowing imagination place at his
control all the resources of an overwhelming rhetoric, and make him
all-powerful with a jury; while the ablest court is guided by his severe
logic, and instructed by the choice which he lays before them of the
most appropriate learning of the cases which he argues. It happens,
unfortunately, that forensic efforts of this kind are rarely reported at
length. A brief sketch of an important law argument finds a place in the
history of the case, but distinguished counsel rarely have time or
bestow the labor required to reproduce in writing an elaborate address
either to court or jury. There is probably no species of intellectual
labor of the highest order, which perishes for want of a contemporary
record to the same extent as that which is daily exerted in the courts
of law.
The present collection contains two speeches addressed to the jury by
Mr. Webster in criminal trials. One was delivered in the case of
Goodridge, and in defence of the persons whom he accused of having
robbed him on the highway. This cause was tried in 1817, shortly after
the establishment of Mr. Webster at Boston. Rarely has a case, in itself
of no greater importance, produced a stronger impression of the ability
of the counsel. The cross-examination of Goodridge, who pretended to
have been robbed, and who had previously been considered a person of
some degree of respectability, is still remembered at the bar of
Massachusetts as terrific beyond example, and the speech to the jury in
which his artfully contrived tale was stripped of its disguises may be
studied as a model of this species of exposition.
Mr. Webster's speech to the jury in the memorable case of John F. Knapp
is of a higher interest. The great importance of this case, as well on
account of the legal principles involved, as of the depth of the tragedy
in real life with which it was connected, has given it a painful
celebrity. A detailed history of the case and of the trial, from the pen
of the late ingenious and learned Mr. Merrill, will be found prefixed to
Mr. Webster's speech, as contained in the fifth volume of this
collection. The record of the _causes celebres_ of no country or age
will furnish either a more thrilling narrative, or a forensic effort of
greater ability. A passage on the power of conscience will arrest the
attention of the reader. There is nothing in the language superior to
it. It was unquestionably owing to the legal skill and moral courage
with which the case was conducted by Mr. Webster, that one of the
foulest crimes ever committed was brought to condign punishment; and the
nicest refinements of the law of evidence were made the means of working
out the most important practical results. But it is time to return to
the chronological series of events.
FOOTNOTES
[6] 1 New Hampshire Reports, p. 113.
[7] American Review, Vol. IX. p. 434.
[8] "Crescit enim cum amplitudine rerum vis ingenii, nec quisquam
claram et inlustrem orationem efficere potest, nisi qui causam
parem invenit." The dialogue _De Oratoribus_, Sec. 37, usually
printed with the works of Tacitus.