Daniel Webster

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.

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1

Mr. Mason, as is well known, was six feet seven inches in height, and his language, always very forcible and direct, was, when he was irritated, if we may trust tradition, at times somewhat profane.