THE DARTMOUTH COLLEGE CASE.--MR. WEBSTER AS A LAWYER.
There is a vague tradition that when Mr. Webster took up his residence in
Boston, some of the worthies of that ancient Puritan town were disposed at
first to treat him rather cavalierly and make him understand that because
he was great in New Hampshire it did not follow that he was also great in
Massachusetts. They found very quickly, however, that it was worse than
useless to attempt anything of this sort with a man who, by his mere look
and presence whenever he entered a room, drew all eyes to himself and
hushed the murmur of conversation. It is certain that Mr. Webster soon
found himself the friend and associate of all the agreeable and
distinguished men of the town, and that he rapidly acquired that general
popularity which, in those days, went with him everywhere. It is also
certain that he at once and without effort assumed the highest position at
the bar as the recognized equal of its most eminent leaders. With an income
increased tenfold and promising still further enlargement, a practice in
which one fee probably surpassed the earnings of three months in New
Hampshire, with an agreeable society about him, popular abroad, happy and
beloved at home, nothing could have been more auspicious than these opening
years of his life in Boston.
The period upon which he then entered, and during which he withdrew from
active public service to devote himself to his profession, was a very
important one in his career. It was a period marked by a rapid intellectual
growth and by the first exhibition of his talents on a large scale. It
embraces, moreover, two events, landmarks in the life of Mr. Webster, which
placed him before the country as one of the first and the most eloquent of
her constitutional lawyers, and as the great master in the art of
occasional oratory. The first of these events was the argument in the
Dartmouth College case; the second was the delivery of the Plymouth
oration.
I do not propose to enter into or discuss the merits or demerits of the
constitutional and legal theories and principles involved in the famous
"college causes," or in any other of the great cases subsequently argued by
Mr. Webster. In a biography of this kind it is sufficient to examine Mr.
Webster's connection with the Dartmouth College case, and endeavor, by a
study of his arguments in that and in certain other hardly less important
causes, to estimate properly the character and quality of his abilities as
a lawyer, both in the ordinary acceptation of the term and in dealing with
constitutional questions.
The complete history of the Dartmouth College case is very curious and
deserves more than a passing notice. Until within three years it is not too
much to say that it was quite unknown, and its condition is but little
better now. In 1879 Mr. John M. Shirley published a volume entitled the
"Dartmouth College Causes," which is a monument of careful study and
thorough research. Most persons would conclude that it was a work of merely
legal interest, appealing to a limited class of professional readers. Even
those into whose hands it chanced to come have probably been deterred from
examining it as it deserves by the first chapter, which is very obscure,
and by the confusion of the narrative which follows. Yet this monograph,
which has so unfortunately suffered from a defective arrangement of
material, is of very great value, not only to our legal and constitutional
history, but to the political history of the time and to a knowledge of the
distinguished actors in a series of events which resulted in the
establishment of one of the most far-reaching of constitutional doctrines,
one that has been a living question ever since the year 1819, and is at
this moment of vast practical importance. Mr. Shirley has drawn forth from
the oblivion of manuscript a collection of documents which, taken in
conjunction with those already in print, throws a flood of light upon a
dark place of the past and gives to a dry constitutional question the vital
and human interest of political and personal history.
In his early days, Eleazer Wheelock, the founder of Dartmouth College, had
had much religious controversy with Dr. Bellamy of Connecticut, who was
like himself a graduate of Yale. Wheelock was a Presbyterian and a liberal,
Bellamy a Congregationalist and strictly orthodox. The charter of Dartmouth
was free from any kind of religious discrimination. By his will the elder
Wheelock provided in such a way that his son succeeded him in the
presidency of the college. In 1793 Judge Niles, a pupil of Bellamy, became
a trustee of the college, and he and John Wheelock represented the opposite
views which they respectively inherited from tutor and father. They were
formed for mutual hostility, and the contest began some twelve years before
it reached the public. The trustees and the president were then all
Federalists, and there would seem to have been no differences of either a
political or a religious nature. The trouble arose from the resistance of a
minority of the trustees to what they termed the "family dynasty."
Wheelock, however, maintained his ascendency until 1809, when his enemies
obtained a majority in the board of trustees, and thereafter admitted no
friend of the president to the government, and used every effort to subdue
the dominant dynasty.
In New Hampshire, at that period, the Federalists were the ruling party,
and the Congregationalists formed the state church. The people were, in
practice, taxed to support Congregational churches, and the clergy of that
denomination were exempted from taxation. All the Congregational ministers
were stanch Federalists and most of their parishioners were of the same
party. The college, the only seat of learning in the State, was one of the
Federalist and Congregational strongholds.
After several years of fruitless and bitter conflict, the Wheelock party,
in 1815, brought their grievances before the public in an elaborate
pamphlet. This led to a rejoinder and a war of pamphlets ensued, which was
soon transferred to the newspapers, and created a great sensation and a
profound interest. Wheelock now contemplated legal proceedings. Mr. Plumer
was in ill health, Judge Smith and Mr. Mason were allied with the trustees,
and the president therefore went to Mr. Webster, consulted him
professionally, paid him, and obtained a promise of his future services.
About the time of this consultation, Wheelock sent a memorial to the
Legislature, charging the trustees with misapplication of the funds, and
various breaches of trust, religious intolerance, and a violation of the
charter in their attacks upon the presidential office, and prayed for a
committee of investigation. The trustees met him boldly and offered a
sturdy resistance, denying all the charges, especially that of religious
intolerance; but the committee was voted by a large majority. On August
5th, Wheelock, as soon as he learned that the committee was to have a
hearing, wrote to Mr. Webster, reminding him of their consultation,
inclosing a fee of twenty dollars, and asking him to appear before the
committee. Mr. Webster did not come, and Wheelock had to go on as best he
could without him. One of Wheelock's friends, Mr. Dunham, wrote a very
indignant letter to Mr. Webster on his failure to appear; to which Mr.
Webster replied that he had seen Wheelock and they had contemplated a suit
in court, but that at the time of the hearing he was otherwise engaged, and
moreover that he did not regard a summons to appear before a legislative
committee as a professional call, adding that he was by no means sure that
the president was wholly in the right. The truth was, that many of Mr.
Webster's strongest personal and political friends, and most of the leaders
with whom he was associated in the control of the Federalist party, were
either trustees themselves or closely allied with the trustees. In the
interval between the consultation with Wheelock and the committee hearing,
these friends and leaders saw Mr. Webster, and pointed out to him that he
must not desert them, and that this college controversy was fast developing
into a party question. Mr. Webster was convinced, and abandoned Wheelock,
making, as has been seen, a very unsatisfactory explanation of his conduct.
In this way he finally parted company with Wheelock, and was thereafter
irrevocably engaged on the side of the trustees.
Events now moved rapidly. The trustees, without heeding the advice of Mr.
Mason to delay, removed Wheelock from the presidency, and appointed in his
place the Rev. Francis Brown. This fanned the flame of popular excitement,
and such a defiance of the legislative committee threw the whole question
into politics. As Mr. Mason had foreseen when he warned the trustees
against hasty action, all the Democrats, all members of sects other than
the Congregational, and all freethinkers generally, were united against the
trustees, and consequently against the Federalists. The election came on.
Wheelock, who was a Federalist, went over to the enemy, carrying his
friends with him, and Mr. Plumer, the Democratic candidate, was elected
Governor, together with a Democratic Legislature. Mr. Webster perceived at
once that the trustees were in a bad position. He advised that every effort
should be made to soothe the Democrats, and that the purpose of founding a
new college should be noised abroad, in order to create alarm. Strategy,
however, was vain. Governor Plumer declared against the trustees in his
message, and the Legislature in June, 1816, despite every sort of protest
and remonstrance, passed an act to reorganize the college, and virtually to
place it within the control of the State. The Governor and council at once
proceeded to choose trustees and overseers under the new law, and among
those thus selected was Joseph Story of Massachusetts.
Both boards of trustees assembled. The old board turned out Judge Woodward,
their secretary, who was a friend to Wheelock and secretary also of the new
board, and, receiving a thousand dollars from a friend of one of the
professors, resolved to fight. President Brown refused to obey the summons
of the new trustees, who expelled the old board by resolution. Thereupon
the old board brought suit against Woodward for the college seal and other
property, and the case came on for trial in May, 1817. Mr. Mason and Judge
Smith appeared for the college, George Sullivan and Ichabod Bartlett for
Woodward and the state board. The case was argued and then went over to the
September term of the same year, at Exeter, when Mason and Smith were
joined by Mr. Webster.
The cause was then argued again on both sides and with signal ability. In
point of talent the counsel for the college were vastly superior to their
opponents, but Sullivan and Bartlett were nevertheless strong men and
thoroughly prepared. Sullivan was a good lawyer and a fluent and ready
speaker, with great power of illustration. Bartlett was a shrewd,
hard-headed man, very keen and incisive, and one whom it was impossible to
outwit or deceive. He indulged, in his argument, in some severe reflections
upon Mr. Webster's conduct toward Wheelock, which so much incensed Mr.
Webster that he referred to Mr. Bartlett's argument in a most contemptuous
way, and strenuously opposed the publication of the remarks "personal or
injurious to counsel."
The weight of the argument for the college fell upon Mason and Smith, who
spoke for two and four hours respectively. Sullivan and Bartlett occupied
three hours, and the next day Mr. Webster closed for the plaintiffs in a
speech of two hours. Mr. Webster spoke with great force, going evidently
beyond the limits of legal argument, and winding up with a splendid
sentimental appeal which drew tears from the crowd in the Exeter
court-room, and which he afterwards used in an elaborated form and with
similar effect before the Supreme Court at Washington.
It now becomes necessary to state briefly the points at issue in this case,
which were all fully argued by the counsel on both sides. Mr. Mason's
brief, which really covered the whole case, was that the acts of the
Legislature were not obligatory, 1, because they were not within the
general scope of legislative power; 2, because they violated certain
provisions of the Constitution of New Hampshire restraining legislative
power; 3, because they violated the Constitution of the United States. 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. 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 question, and they were all thrown
aside by Judge Washington, who declared them irrelevant, and rested his
decision solely and properly on the constitutional point. Two months after
his Washington argument, Mr. Webster, still urging forward the Circuit
Court cases, wrote to Mr. Mason that all the questions must be brought
properly before the Supreme Court, and that, on the "general principle"
that the State Legislature could not divest vested rights, strengthened by
the constitutional provisions of New Hampshire, he was sure they could
defeat their adversaries. Thus this doctrine of "impairing the obligation
of contracts," which produced a decision in its effects more far-reaching
and of more general interest than perhaps any other ever made in this
country, was imported into the case at the suggestion of laymen, was little
esteemed by counsel, and was comparatively neglected in every argument.
It is necessary to go back now, for a moment, in the history of the case.
The New Hampshire court decided against the plaintiffs on every point, and
gave a very strong and elaborate judgment, which Mr. Webster acknowledged
was "able, plausible, and ingenious." After much wrangling, the counsel
agreed on a special verdict, and took the case up on a writ of error to the
Supreme Court. Mason and Smith were unable or unwilling to go to
Washington, and the case was intrusted to Mr. Webster, who secured the
assistance of Mr. Joseph Hopkinson of Philadelphia. The case for the State,
hitherto ably managed, was now confided to Mr. John Holmes of Maine, and
Mr. Wirt, the Attorney-General, who handled it very badly. Holmes, an
active, fluent Democratic politician, made a noisy, rhetorical, political
speech, which pleased his opponents and disgusted his clients and their
friends. Mr. Wirt, loaded with business cares of every sort, came into
court quite unprepared, and endeavored to make up for his deficiencies by
declamation. On the other side the case was managed with consummate skill.
Hopkinson was a sound lawyer, and, being thoroughly prepared, made a good
legal argument. The burden of the conflict was, however, borne by Mr.
Webster, who was more interested personally than professionally, and who,
having raised money in Boston to defray the expenses of the suit, came into
the arena at Washington armed to the teeth, and in the full lustre of his
great powers.
The case was heard on March 10, 1818, and was opened by Mr. Webster. He had
studied the arguments of his adversaries below, and the vigorous hostile
opinion of the New Hampshire judges. He was in possession of the thorough
argument emanating from the penetrating mind of Mr. Mason and fortified and
extended by the ample learning and judicial wisdom of Judge Smith. To the
work of his eminent associates he could add nothing more than one not very
important point, and a few cases which his far-ranging and retentive memory
supplied. All the notes, minutes, and arguments of Smith and Mason were in
his hands. It is only just to say that Mr. Webster tells all this himself,
and that he gives all credit to his colleagues, whose arguments he says "he
clumsily put together," and of which he adds that he could only be the
reciter. The faculty of obtaining and using the valuable work of other men,
one of the characteristic qualities of a high and commanding order of mind,
was even then strong in Mr. Webster. But in that bright period of early
manhood it was accompanied by a frank and generous acknowledgment of all
and more than all the intellectual aid he received from others. He truly
and properly awarded to Mason and Smith all the credit for the law and for
the legal points and theories set forth on their side, and modestly says
that he was merely the arranger and reciter of other men's thoughts. But
how much that arrangement and recitation meant! There were, perhaps, no
lawyers better fitted than Mason and Smith to examine a case and prepare an
argument enriched with everything that learning and sagacity could suggest.
But when Mr. Webster burst upon the court and the nation with this great
appeal, it was certain that there was no man in the land who could so
arrange arguments and facts, who could state them so powerfully and with
such a grand and fitting eloquence.
The legal part of the argument was printed in Farrar's report and also in
Wheaton's, after it had been carefully revised by Mr. Webster with the
arguments of his colleagues before him. This legal and constitutional
discussion shows plainly enough Mr. Webster's easy and firm grasp of facts
and principles, and his power of strong, effective, and lucid statement;
but it is in its very nature dry, cold, and lawyer-like. It gives no
conception of the glowing vehemence of the delivery, or of those omitted
portions of the speech which dealt with matters outside the domain of law,
and which were introduced by Mr. Webster with such telling and important
results. He spoke for five hours, but in the printed report his speech
occupies only three pages more than that of Mr. Mason in the court below.
Both were slow speakers, and thus there is a great difference in time to be
accounted for, even after making every allowance for the peroration which
we have from another source, and for the wealth of legal and historical
illustration with which Mr. Webster amplified his presentation of the
question. "Something was left out," Mr. Webster says, and that something
which must have occupied in its delivery nearly an hour was the most
conspicuous example of the generalship by which Mr. Webster achieved
victory, and which was wholly apart from his law. This art of management
had already been displayed in the treatment of the cases made up for the
Circuit Courts, and in the elaborate and irrelevant legal discussion which
Mr. Webster introduced before the Supreme Court. But this management now
entered on a much higher stage, where it was destined to win victory, and
exhibited in a high degree tact and knowledge of men. Mr. Webster was fully
aware that he could rely, in any aspect of the case, upon the sympathy of
Marshall and Washington. He was equally certain of the unyielding
opposition of Duvall and Todd; the other three judges, Johnson, Livingston,
and Story, were known to be adverse to the college, but were possible
converts. The first point was to increase the sympathy of the Chief Justice
to an eager and even passionate support. Mr. Webster knew the chord to
strike, and he touched it with a master hand. This was the "something left
out," of which we know the general drift, and we can easily imagine the
effect. In the midst of all the legal and constitutional arguments,
relevant and irrelevant, even in the pathetic appeal which he used so well
in behalf of his Alma Mater, Mr. Webster boldly and yet skilfully
introduced the political view of the case. So delicately did he do it that
an attentive listener did not realize that he was straying from the field
of "mere reason" into that of political passion. Here no man could equal
him or help him, for here his eloquence had full scope, and on this he
relied to arouse Marshall, whom he thoroughly understood. In occasional
sentences he pictured his beloved college under the wise rule of
Federalists and of the Church. He depicted the party assault that was made
upon her. He showed the citadel of learning threatened with unholy invasion
and falling helplessly into the hands of Jacobins and freethinkers. As the
tide of his resistless and solemn eloquence, mingled with his masterly
argument, flowed on, we can imagine how the great Chief Justice roused like
an old war-horse at the sound of the trumpet. The words of the speaker
carried him back to the early years of the century, when, in the full flush
of manhood, at the head of his court, the last stronghold of Federalism,
the last bulwark of sound government, he had faced the power of the
triumphant Democrats. Once more it was Marshall against Jefferson,--the
judge against the President. Then he had preserved the ark of the
Constitution. Then he had seen the angry waves of popular feeling breaking
vainly at his feet. Now, in his old age, the conflict was revived.
Jacobinism was raising its sacrilegious hand against the temples of
learning, against the friends of order and good government. The joy of
battle must have glowed once more in the old man's breast as he grasped
anew his weapons and prepared with all the force of his indomitable will to
raise yet another constitutional barrier across the path of his ancient
enemies.
We cannot but feel that Mr. Webster's lost passages, embodying this
political appeal, did the work, and that the result was settled when the
political passions of the Chief Justice were fairly aroused. Marshall would
probably have brought about the decision by the sole force of his imperious
will. But Mr. Webster did a good deal of effective work after the arguments
were all finished, and no account of the case would be complete without a
glance at the famous peroration with which he concluded his speech and in
which he boldly flung aside all vestige of legal reasoning, and spoke
directly to the passions and emotions of his hearers.
When he had finished his argument he stood silent for some moments, until
every eye was fixed upon him, then, addressing the Chief Justice, he
said:--
This, sir, is my case. It is the case not merely of that humble
institution, it is the case of every college in our land....
"Sir, you may destroy this little institution; it is weak; it is in
your hands! I know it is one of the lesser lights in the literary
horizon of our country. You may put it out. But if you do so you
must carry through your work! You must extinguish, one after
another, all those greater lights of science which for more than a
century have thrown their radiance over our land. It is, sir, as I
have said, a small college. And yet there are those who love it."
Here his feelings mastered him; his eyes filled with tears, his lips
quivered, his voice was choked. In broken words of tenderness he spoke of
his attachment to the college, and his tones seemed filled with the
memories of home and boyhood; of early affections and youthful privations
and struggles.
"The court room," says Mr. Goodrich, to whom we owe this
description, "during these two or three minutes presented an
extraordinary spectacle. Chief Justice Marshall, with his tall and
gaunt figure bent over as if to catch the slightest whisper, the
deep furrows of his cheek expanded with emotion and his eyes
suffused with tears; Mr. Justice Washington, at his side, with his
small and emaciated frame, and countenance more like marble than I
ever saw on any other human being,--leaning forward with an eager,
troubled look; and the remainder of the court at the two
extremities, pressing, as it were, to a single point, while the
audience below were wrapping themselves round in closer folds
beneath the bench, to catch each look and every movement of the
speaker's face....
"Mr. Webster had now recovered his composure, and, fixing his keen
eye on the Chief Justice, said in that deep tone with which he
sometimes thrilled the heart of an audience:--
"'Sir, I know not how others may feel' (glancing at the opponents
of the college before him), 'but for myself, when I see my Alma
Mater surrounded, like Caesar in the senate-house, by those who are
reiterating stab after stab, I would not, for this right hand, have
her turn to me, and say, _Et tu quoque, mi fili! And thou too, my
son!_'"
This outbreak of feeling was perfectly genuine. Apart from his personal
relations to the college, he had the true oratorical temperament, and no
man can be an orator in the highest sense unless he feels intensely, for
the moment at least, the truth and force of every word he utters. To move
others deeply he must be deeply moved himself. Yet at the same time Mr.
Webster's peroration, and, indeed, his whole speech, was a model of
consummate art. Great lawyer as he undoubtedly was, he felt on this
occasion that he could not rely on legal argument and pure reason alone.
Without appearing to go beyond the line of propriety, without indulging in
a declamation unsuited to the place, he had to step outside of legal points
and in a freer air, where he could use his keenest and strongest weapons,
appeal to the court not as lawyers but as men subject to passion, emotion,
and prejudice. This he did boldly, delicately, successfully, and thus he
won his case.
The replies of the opposing counsel were poor enough after such a speech.
Holmes's declamation sounded rather cheap, and Mr. Wirt, thrown off his
balance by Mr. Webster's exposure of his ignorance, did but slight justice
to himself or his cause. March 12th the arguments were closed, and the next
day, after a conference, the Chief Justice announced that the court could
agree on nothing and that the cause must be continued for a year, until the
next term. The fact probably was that Marshall found the judges five to two
against the college, and that the task of bringing them into line was not a
light one.
In this undertaking, however, he was powerfully aided by the counsel and
all the friends of the college. The old board of trustees had already paid
much attention to public opinion. The press was largely Federalist, and,
under the pressure of what was made a party question, they had espoused
warmly the cause of the college. Letters and essays had appeared, and
pamphlets had been circulated, together with the arguments of the counsel
at Exeter. This work was pushed with increased eagerness after the argument
at Washington, and the object now was to create about the three doubtful
judges an atmosphere of public opinion which should imperceptibly bring
them over to the college. Johnson, Livingston, and Story were all men who
would have started at the barest suspicion of outside influence even in the
most legitimate form of argument, which was all that was ever thought of or
attempted. This made the task of the trustees very delicate and difficult
in developing a public sentiment which should sway the judges without their
being aware of it. The printed arguments of Mason, Smith, and Webster were
carefully sent to certain of the judges, but not to all. All documents of a
similar character found their way to the same quarters. The leading
Federalists were aroused everywhere, so that the judges might be made to
feel their opinion. With Story, as a New England man, a Democrat by
circumstances, a Federalist by nature, there was but little difficulty. A
thorough review of the case, joined with Mr. Webster's argument, caused him
soon to change his first impression. To reach Livingston and Johnson was
not so easy, for they were out of New England, and it was necessary to go a
long way round to get at them. The great legal upholder of Federalism in
New York was Chancellor Kent. His first impression, like that of Story, was
decidedly against the college, but after much effort on the part of the
trustees and their able allies, Kent was converted, partly through his
reason, partly through his Federalism, and then his powers of persuasion
and his great influence on opinion came to bear very directly on
Livingston, more remotely on Johnson. The whole business was managed like a
quiet, decorous political campaign. The press and the party were everywhere
actively interested. At first, and in the early summer of 1818, before Kent
was converted, matters looked badly for the trustees. Mr. Webster knew the
complexion of the court, and hoped little from the point raised in Trustees
vs. Woodward. Still, no one despaired, and the work was kept up until, in
September, President Brown wrote to Mr. Webster in reference to the
argument:--
"It has already been, or shortly will be, read by all the
_commanding_ men of New England and New York; and so far as it has
gone it has united them all, without a single exception within my
knowledge, in one broad and impenetrable phalanx for our defence
and support. New England and New York _are gained_. Will not this
be sufficient for our present purposes? If not, I should recommend
reprinting. And on this point you are the best judge. I
prevailingly think, however, that the current of opinion from this
part of the country is setting so strongly towards the South that
we may safely trust to its force alone to accomplish whatever is
necessary."
The worthy clergyman writes of public opinion as if the object was to elect
a President. All this effort, however, was well applied, as was found when
the court came together at the next term. In the interval the State had
become sensible of the defects of their counsel, and had retained Mr.
Pinkney, who stood at that time at the head of the bar of the United
States. He had all the qualifications of a great lawyer, except perhaps
that of robustness. He was keen, strong, and learned; diligent in
preparation, he was ready and fluent in action, a good debater, and master
of a high order of eloquence. He was a most formidable adversary, and one
whom Mr. Webster, then just at the outset of his career, had probably no
desire to meet in such a doubtful case as this.[1] Even here, however,
misfortune seemed to pursue the State, for Mr. Pinkney was on bad terms
with Mr. Wirt, and acted alone. He did all that was possible; prepared
himself elaborately in the law and history of the case, and then went into
court ready to make the wisest possible move by asking for a re-argument.
Marshall, however, was also quite prepared. Turning his "blind ear," as
some one said, to Pinkney, he announced, as soon as he took his seat, that
the judges had come to a conclusion during the vacation. He then read one
of his great opinions, in which he held that the college charter was a
contract within the meaning of the Constitution, and that the acts of the
New Hampshire Legislature impaired this contract, and were therefore void.
To this decision four judges assented in silence, although Story and
Washington subsequently wrote out opinions. Judge Todd was absent, through
illness, and Judge Duvall dissented. The immediate effect of the decision
was to leave the college in the hands of the victorious Federalists. In the
precedent which it established, however, it had much deeper and more
far-reaching results. It brought within the scope of the Constitution of
the United States every charter granted by a State, limited the action of
the States in a most important attribute of sovereignty, and extended the
jurisdiction of the highest federal court more than any other judgment ever
rendered by them. From the day when it was announced to the present time,
the doctrine of Marshall in the Dartmouth College case has continued to
exert an enormous influence, and has been constantly sustained and attacked
in litigation of the greatest importance.
[Footnote 1: Mr. Peter Harvey, in his _Reminiscences_ (p. 122), has an
anecdote in regard to Webster and Pinkney, which places the former in the
light of a common and odious bully, an attitude as alien to Mr. Webster's
character as can well be conceived. The story is undoubtedly either wholly
fictitious or so grossly exaggerated as to be practically false. On the
page preceding the account of this incident, Mr. Harvey makes Webster say
that he never received a challenge from Randolph, whereas in Webster's own
letter, published by Mr. Curtis, there is express reference to a note of
challenge received from Randolph. This is a fair example of these
_Reminiscences_. A more untrustworthy book it would be impossible to
imagine. There is not a statement in it which can be safely accepted,
unless supported by other evidence. It puts its subject throughout in the
most unpleasant light, and nothing has ever been written about Webster so
well calculated to injure and belittle him as these feeble and distorted
recollections of his loving and devoted Boswell. It is the reflection of a
great man upon the mirror of a very small mind and weak memory.]
The defendant Woodward having died, Mr. Webster moved that the judgment be
entered _nunc pro tunc_. Pinkney and Wirt objected on the ground that the
other causes on the docket contained additional facts, and that no final
judgment should be entered until these causes had been heard. The court,
however, granted Mr. Webster's motion. Mr. Pinkney then tried to avail
himself of the stipulation in regard to the special verdict, that any new
and material facts might be added or any facts expunged. Mr. Webster
peremptorily declined to permit any change, obtained judgment against
Woodward, and obliged Mr. Pinkney to consent that the other causes should
be remanded, without instructions, to the Circuit Court, where they were
heard by Judge Story, who rendered a decree _nisi_ for the college. This
closed the case, and such were the last displays of Mr. Webster's dexterous
and vigorous management of the famous "college causes."
The popular opinion of this case seems to be that Mr. Webster, with the aid
of Mr. Mason and Judge Smith, developed a great constitutional argument,
which he forced upon the acceptance of the court by the power of his close
and logical reasoning, and thus established an interpretation of the
Constitution of vast moment. The truth is, that the suggestion of the
constitutional point, not a very remarkable idea in itself, originated, as
has been said, with a layman, was regarded by Mr. Webster as a forlorn
hope, and was very briefly discussed by him before the Supreme Court. He
knew, of course, that if the case were to be decided against Woodward, it
could only be on the constitutional point, but he evidently thought that
the court would not take the view of it which was favorable to the college.
The Dartmouth College case was unquestionably one of Mr. Webster's great
achievements at the bar, but it has been rightly praised on mistaken
grounds. Mr. Webster made a very fine presentation of the arguments mainly
prepared by Mason and Smith. He transcended the usual legal limits with a
burst of eloquent appeal which stands high among the famous passages of his
oratory. In what may be called the strategy of the case he showed the best
generalship and the most skilful management. He also proved himself to be
possessed of great tact and to be versed in the knowledge of men, qualities
not usually attributed to him because their exercise involved an amount of
care and painstaking foreign to his indolent and royal temperament, which
almost always relied on weight and force for victory.
Mr. Webster no doubt improved in details, and made better arguments at the
bar than he did upon this occasion, but the Dartmouth College case, on the
whole, shows his legal talents so nearly at their best, and in such unusual
variety, that it is a fit point at which to pause in order to consider some
of his other great legal arguments and his position and abilities as a
lawyer. For this purpose it is quite sufficient to confine ourselves to the
cases mentioned by Mr. Curtis, and to the legal arguments preserved in the
collection of Mr. Webster's speeches.
Five years after the Dartmouth College decision, Mr. Webster made his
famous argument in the case of Gibbons vs. Ogden. The case was called
suddenly, and Mr. Webster prepared his argument in a single night of
intense labor. The facts were all before him, but he showed a readiness in
arrangement only equalled by its force. The question was whether the State
of New York had a right under the Constitution to grant a monopoly of steam
navigation in its waters to Fulton and Livingston. Mr. Webster contended
that the acts making such a grant were unconstitutional, because the power
of Congress to regulate commerce was, within certain limitations,
exclusive. He won his cause, and the decision, from its importance,
probably enhanced the contemporary estimate of his effort. The argument was
badly reported, but it shows all its author's strongest qualities of close
reasoning and effective statement. The point in issue was neither difficult
nor obscure, and afforded no opportunity for a display of learning. It was
purely a matter of constitutional interpretation, and could be discussed
chiefly in a historical manner and from the standpoint of public interests.
This was particularly fitted to Mr. Webster's cast of mind, and he did his
subject full justice. It was pure argument on general principles. Mr.
Webster does not reach that point of intense clearness and condensation
which characterized Marshall and Hamilton, in whose writings we are
fascinated by the beauty of the intellectual display, and are held fast by
each succeeding line, which always comes charged with fresh meaning.
Nevertheless, Mr. Webster touches a very high point in this most difficult
form of argument, and the impressiveness of his manner and voice carried
all that he said to its mark with a direct force in which he stood
unrivalled.
In Ogden v. Saunders, heard in 1827, Mr. Webster argued that the clause
prohibiting state laws impairing the obligation of contracts covered future
as well as past contracts. He defended his position with astonishing
ability, but the court very correctly decided against him. The same
qualities which appear in these cases are shown in the others of a like
nature, which were conspicuous among the multitude with which he was
intrusted. We find them also in cases involving purely legal questions,
such as the Bank of the United States v. Primrose, and The Providence
Railroad Co. v. The City of Boston, accompanied always with that ready
command of learning which an extraordinary memory made easy. There seemed
to be no diminution of Mr. Webster's great powers in this field as he
advanced in years. In the Rhode Island case and in the Passenger Tax cases,
argued when he was sixty-six years old, he rose to the same high plane of
clear, impressive, effective reasoning as when he defended his Alma Mater.
Two causes, however, demand more than a passing mention,--the Girard will
case and the Rhode Island case. The former involved no constitutional
points. The suit was brought to break the will of Stephen Girard, and the
question was whether the bequest to found a college could be construed to
be a charitable devise. On this question Mr. Webster had a weak case in
point of law, but he readily detected a method by which he could go boldly
outside the law, as he had done to a certain degree in the Dartmouth
College case, and substitute for argument an eloquent and impassioned
appeal to emotion and prejudice. Girard was a free-thinker, and he provided
in his will that no priest or minister of any denomination should be
admitted to his college. Assuming that this excluded all religious
teaching, Mr. Webster then laid down the proposition that no bequest or
gift could be charitable which excluded Christian teaching. In other words,
he contended that there was no charity except Christian charity, which, the
poet assures us, is so rare. At this day such a theory would hardly be
gravely propounded by any one. But Mr. Webster, on the ground that Girard's
bequest was derogatory to Christianity, pronounced a very fine discourse
defending and eulogizing, with much eloquence, the Christian religion. The
speech produced a great effect. One is inclined to think that it was the
cause of the court's evading the question raised by Mr. Webster, and
sustaining the will, a result they were bound to reach in any event, on
other grounds. The speech certainly produced a great sensation, and was
much admired, especially by the clergy, who caused it to be printed and
widely distributed. It did not impress lawyers quite so favorably, and we
find Judge Story writing to Chancellor Kent that "Webster did his best for
the other side, but it seems to me altogether an address to the prejudices
of the clergy." The subject, in certain ways, had a deep attraction for Mr.
Webster. His imagination was excited by the splendid history of the Church,
and his conservatism was deeply stirred by a system which, whether in the
guise of the Romish hierarchy, as the Church of England, or in the form of
powerful dissenting sects, was, as a whole, imposing by its age, its
influence, and its moral grandeur. Moreover, it was one of the great
established bulwarks of well-ordered and civilized society. All this
appealed strongly to Mr. Webster, and he made the most of his opportunity
and of his shrewdly-chosen ground. Yet the speech on the Girard will is not
one of his best efforts. It has not the subdued but intense fire which
glowed so splendidly in his great speeches in the Senate. It lacked the
stately pathos which came always when Mr. Webster was deeply moved. It was
delivered in 1844, and was slightly tinged with the pompousness which
manifested itself in his late years, and especially on religious topics. No
man has a right to question the religious sincerity of another, unless upon
evidence so full and clear that, in such cases, it is rarely to be found.
There is certainly no cause for doubt in Mr. Webster's case. He was both
sincere and honest in religion, and had a real and submissive faith. But he
accepted his religion as one of the great facts and proprieties of life. He
did not reach his religious convictions after much burning questioning and
many bitter experiences. In this he did not differ from most men of this
age, and it only amounts to saying that Mr. Webster did not have a deeply
religious temperament. He did not have the ardent proselyting spirit which
is the surest indication of a profoundly religious nature; the spirit of
the Saracen Emir crying, "Forward! Paradise is under the shadow of our
swords." When, therefore, he turned his noble powers to a defence of
religion, he did not speak with that impassioned fervor which, coming from
the depths of a man's heart, savors of inspiration and seems essential to
the highest religious eloquence. He believed thoroughly every word he
uttered, but he did not feel it, and in things spiritual the heart must be
enlisted as well as the head. It was wittily said of a well-known
anti-slavery leader, that had he lived in the Middle Ages he would have
gone to the stake for a principle, under a misapprehension as to the facts.
Mr. Webster not only could never have misapprehended facts, but, if he had
flourished in the Middle Ages he would have been a stanch and honest
supporter of the strongest government and of the dominant church. Perhaps
this defines his religious character as well as anything, and explains why
the argument in the Girard will case, fine as it was, did not reach the
elevation and force which he so often displayed on other themes.
The Rhode Island case grew out of the troubles known at that period as
Dorr's rebellion. It involved a discussion not only of the constitutional
provisions for suppressing insurrections and securing to every State a
republican form of government, but also of the general history and theory
of the American governments, both state and national. There was thus
offered to Mr. Webster that full scope and large field in which he
delighted, and which were always peculiarly favorable to his talents. His
argument was purely constitutional, and although not so closely reasoned,
perhaps, as some of his earlier efforts, is, on the whole, as fine a
specimen as we have of his intellectual power as a constitutional lawyer at
the bar of the highest national tribunal. Mr. Webster did not often
transcend the proper limits of purely legal discussion in the courts, and
yet even when the question was wholly legal, the court-room would be
crowded by ladies as well as gentlemen, to hear him speak. It was so at the
hearing of the Girard suit; and during the strictly legal arguments in the
Charles River Bridge case, the court-room, Judge Story says, was filled
with a brilliant audience, including many ladies, and he adds that
"Webster's closing reply was in his best manner, but with a little too much
_fierté_ here and there." The ability to attract such audiences gives an
idea of the impressiveness of his manner and of the beauty of his voice and
delivery better than anything else, for these qualities alone could have
drawn the general public and held their attention to the cold and dry
discussion of laws and constitutions.
There is a little anecdote told by Mr. Curtis in connection with this Rhode
Island case, which illustrates very well two striking qualities in Mr.
Webster as a lawyer. The counsel in the court below had been assisted by a
clever young lawyer named Bosworth, who had elaborated a point which he
thought very important, but which his seniors rejected. Mr. Bosworth was
sent to Washington to instruct Mr. Webster as to the cause, and, after he
had gone through the case, Mr. Webster asked if that was all. Mr. Bosworth
modestly replied that there was another view of his own which his seniors
had rejected, and then stated it briefly. When he concluded, Mr. Webster
started up and exclaimed, "Mr. Bosworth, by the blood of all the Bosworths
who fell on Bosworth field, that is _the_ point of the case. Let it be
included in the brief by all means." This is highly characteristic of one
of Mr. Webster's strongest attributes. He always saw with an unerring
glance "_the_ point" of a case or a debate. A great surgeon will detect the
precise spot where the knife should enter when disease hides it from other
eyes, and often with apparent carelessness will make the necessary incision
at the exact place when a deflection of a hair's breadth or a tremor of the
hand would bring death to the patient. Mr. Webster had the same
intellectual dexterity, the mingled result of nature and art. As the tiger
is said to have a sure instinct for the throat of his victim, so Mr.
Webster always seized on the vital point of a question. Other men would
debate and argue for days, perhaps, and then Mr. Webster would take up the
matter, and grasp at once the central and essential element which had been
there all along, pushed hither and thither, but which had escaped all eyes
but his own. He had preëminently
"The calm eye that seeks
'Midst all the huddling silver little worth
The one thin piece that comes, pure gold."
The anecdote further illustrates the use which Mr. Webster made of the
ideas of other people. He did not say to Mr. Bosworth, here is the true
point of the case, but he saw that something was wanting, and asked the
young lawyer what it was. The moment the proposition was stated he
recognized its value and importance at a glance. He might and probably
would have discovered it for himself, but his instinct was to get it from
some one else.
It is one of the familiar attributes of great intellectual power to be able
to select subordinates wisely; to use other people and other people's labor
and thought to the best advantage, and to have as much as possible done for
one by others. This power of assimilation Mr. Webster had to a marked
degree. There is no depreciation in saying that he took much from others,
for it is a capacity characteristic of the strongest minds, and so long as
the debt is acknowledged, such a faculty is a subject for praise, not
criticism. But when the recipient becomes unwilling to admit the obligation
which is no detraction to himself, and without which the giver is poor
indeed, the case is altered. In his earliest days Mr. Webster used to draw
on one Parker Noyes, a mousing, learned New Hampshire lawyer, and freely
acknowledged the debt. In the Dartmouth College case, as has been seen, he
over and over again gave simply and generously all the credit for the
learning and the points of the brief to Mason and Smith, and yet the glory
of the case has rested with Mr. Webster and always will. He gained by his
frank honesty and did not lose a whit. But in his latter days, when his
sense of justice had grown somewhat blunted and his nature was perverted by
the unmeasured adulation of the little immediate circle which then hung
about him, he ceased to admit his obligations as in his earlier and better
years. From no one did Mr. Webster receive so much hearty and generous
advice and assistance as from Judge Story, whose calm judgment and wealth
of learning were always at his disposal. They were given not only in
questions of law, but in regard to the Crimes Act, the Judiciary Act, and
the Ashburton treaty. After Judge Story's death, Mr. Webster not only
declined to allow the publication by the judge's son and biographer of
Story's letters to himself, but he refused to permit even the publication
of extracts from his own letters, intended merely to show the nature of the
services rendered to him by Story. A cordial assent would have enhanced the
reputation of both. The refusal is a blot on the intellectual greatness of
the one and a source of bitterness to the descendants and admirers of the
other. It is to be regretted that the extraordinary ability which Mr.
Webster always showed in grasping and assimilating masses of theories and
facts, and in drawing from them what was best, should ever have been
sullied by a want of gratitude which, properly and freely rendered, would
have made the lustre of his own fame shine still more brightly.
A close study of Mr. Webster's legal career, in the light of contemporary
reputation and of the best examples of his work, leads to certain quite
obvious conclusions. He had not a strongly original or creative legal mind.
This was chiefly due to nature, but in some measure to a dislike to the
slow processes of investigation and inquiry which were always distasteful
to him, although he was entirely capable of intense and protracted
exertion. He cannot, therefore, be ranked with the illustrious few, among
whom we count Mansfield and Marshall as the most brilliant examples, who
not only declared what the law was, but who made it. Mr. Webster's powers
were not of this class, but, except in these highest and rarest qualities,
he stands in the front rank of the lawyers of his country and his age.
Without extraordinary profundity of thought or depth of learning, he had a
wide, sure, and ready knowledge both of principles and cases. Add to this
quick apprehension, unerring sagacity for vital and essential points, a
perfect sense of proportion, an almost unequalled power of statement,
backed by reasoning at once close and lucid, and we may fairly say that Mr.
Webster, who possessed all these qualities, need fear comparison with but
very few among the great lawyers of that period either at home or abroad.