Daniel Webster and the Dartmouth CaseAuthor(s): Leonard BakerSource: Litigation, Vol. 3, No. 2, PREPARING AND EXAMINING WITNESSES (Winter 1977), pp.35-38Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758310 .
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Legal
Lore
IS
Diiniel Wehster and
the Dartmouth Case
by Leonard Baker The Dartmouth College case argued before the Supreme Court in 1818 was a combination of law and dramatics, probably the outstanding example of the joining of the actor and the law? yer. Those who were present talked about the arguments for years after? wards. The Court then held its ses? sions in a small chamber on the Senate side of the Capitol, its regular chambers not yet having been rebuilt after the fire set by the British in 1814. All seven justices were present,
with John Marshall sitting in the center of the bench, his appearance dominating the entire assemblage.
The chamber was filled primarily with lawyers. Daniel Webster's repu? tation as an advocate was not yet so
great as to attract large public crowds. Only in his mid-thirties, Daniel Webster, himself a Dart? mouth graduate, was beginning to show that he was a victim of the good life. Once he had been a slender
young man, impressively handsome. When he argued the Dartmouth case he weighed more than two hundred
pounds, although he stood only five feet ten inches tall. A friendly des?
cription has him exchanging his "earlier vivacity for a slow stateliness which was awesome to strangers."
Despite this increased girth, he continued a fiery speaker and a bril? liant trial lawyer. On the other side, the state's case was argued by New
Hampshire Attorney General Wil
liam Wirt. "Wirt is a man of a good deal of ability/' said Webster, "he is rather more of a lawyer than I
expected." The case itself had begun two years
earlier, in 1816, when the New
Hampshire legislature had amended the charter of Dartmouth College to
enlarge the number of trustees and create a Board of Overseers, through which the governor could control the
college by his appointments. William H. Woodward, chief justice of the state Court of Common Pleas, then directed that records of the school be turned over to the new trustees. The old trustees, who had been appointed under the original charter, sued the state in the name of Woodward to recover those documents.
Hinge of Case The case hinged on whether a con?
tractual arrangement is altered when a state legislature attempts to alter
property rights granted by a previous legislature or government. In 1810,
when Chief Justice Marshall resolved the Yazoo land scandals with his decision in Fletcher v. Peek, he said that such an attempt by a state legis? lature is an attempt to alter a contract
against the constitutional prohibition that states may not make any laws
negativing contracts. A case more to the point came
before the Supreme Court in 1815, Terrett v. Taylor. Prior to the protec? tion of religious freedom in Virginia, the Episcopal Church had been
granted large tracts of land. It
operated this land, sold it, considered
Mr. Baker is the author of John Marshall? a Life in Law, from which this article is
adapted, and Back to Back?The Duel between FDR and the supreme court.
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itself as a regular property owner? which it was. After the religious freedom declaration, however, the
question arose as to whether the state could withdraw the land from the
Episcopal Church. Joseph Story wrote the opinion of the Supreme Court, which stated that the legisla? ture had the right to make the
original grant, and "it is very clear to our minds that it vested an indefeasible and irrevocable title. We have no knowledge of any authority or principle which could support the doctrine that a legislative grant is revocable in its own nature, and held
only durante bene placito." Using words that should have given the state of New Hampshire reason to hesitate before attacking the corporate status of Dartmouth later, Story said in that 1815 case:
. . . [T]hat the legislature can re?
peal statutes creating private cor?
porations, or confirming to them
property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such
purposes, as they may please, without the consent or default of the corporators, we are not
prepared to admit; and we think ourselves standing upon the prin? ciples of natural justice, upon the fundamental laws of every free
government, upon the spirit and the letter of the constitution of the United States, and upon the deci? sions of most respectable judicial tribunals. . . .
Although Terrett v. Taylor dealt with tangible property, land in
Virginia, and the Dartmouth case would deal with, basically, an intan?
gible?the reins of power?the prece? dent was obvious. An institution which receives its charter from the
government cannot have its rights abused by a later government seeking to alter that charter without the consent of the institution.
The college trustees had failed in the New Hampshire courts to win back the books, records, and cor?
porate seal which had been taken from them on Woodward's order. The issue that came before the
Supreme Court was whether the Con? stitution of the United States had
been violated when the state, through its legislature, had changed the
college charter. Webster's argument was a beauti?
fully constructed piece of legal crafts?
manship. The printed account runs
forty-nine pages with citations from the state courts, earlier Supreme Court cases, The Federalist Papers, British parliamentary debates, and British court cases. Webster argued first that the New Hampshire legisla? ture had seemed almost capricious in its action dissolving the old status of the college and establishing a new
corporation: No funds are given to the college by this [Crown] charter. A corporate existence and capacity are given to the trustees, with the privileges and immunities, which have been men?
tioned, to enable the founder and his associates the better to manage the funds which they themselves had contributed, and such others as might afterwards obtain.
That section seems tailored to fit
Story's decision in Terrett v. Taylor. Webster continued:
After the institution, thus created and constituted, had existed unin?
terruptedly and usefully, nearly fifty years, the legislature of New
Hampshire passed the acts in ques? tion. . . . If these acts are valid, the old corporation is abolished, and a new one created.
The State's View
The new corporation had been
formed, Webster said, because the state believed it had the power to deal with the old corporation as it saw fit, to abolish it, alter it, or alienate it. "It will be contended by the plaintiffs that these acts are not valid and
binding on them without their assent.
(1) Because they are against common
right, and the constitution of New
Hampshire. (2) Because they are re?
pugnant to the constitution of the United States." The Supreme Court, of course, could only consider the last
point, whether the alteration of the
corporation was a violation of the federal constitution. Webster ack?
nowledged that. "Yet," he said, "it
may assist in forming an opinion of their true nature and character, to
compare them with those fundamen? tal principles introduced into the
State governments for the purpose of
limiting the exercise of the legislative power."
In dealing with his first point, that the state legislature's actions were a
violation of both common right and state law, Webster summed up with:
If the [state] constitution be not
altogether waste paper, it has re? strained the power of the legisla? ture in these particulars. If it has
any meaning, it is, that the legisla? ture shall pass no act directly and
manifestly impairing private prop? erty and private privileges. It shall not judge by act. It shall not decide
by act. It shall not deprive by act. But it shall leave all these things to be tried and adjudged by the law of the land.
That statement is a rephrasing of the rule of law?for which men like John
Marshall had struggled for decades.
Society must be governed by rules which cannot be altered by whim, momentary passion, or political considerations.
Then he turned to the basic issue before the Court, whether the state actions violated the section of the federal constitution that prohibited a state from passing "any bill of attainder, ex post facto law, or law
impairing the obligation of con? tracts." He cited the Fletcher v. Peck decision in the Yazoo land scandal as
already deciding "that a grant by a state is also a contract as much as the
grant of an individual." He then referred to Story's decision in Terrett v. Taylor and said that it "seems to leave little to be argued or decided in this."
Webster, of course, was correct.
The issue already had been decided, not only in the cases he cited but when the Americans had determined to overthrow the arbitrary rule of King George for the disciplined rule of law. Daniel Webster now said as much to the Supreme Court justices. The American people, he declared, "have, most wisely, chosen to take the risk of occasional inconvenience from the want of power, in order that there
might be a settled limit to its exercise, and a permanent security against its abuse." The American people, he
continued, had imposed "prohibi? tions and restraints" on government "and they have not rendered these
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altogether vain and nugatory by conferring the power of dispensa? tion." There could be no exceptions. He continued:
If inconvenience should arise, which the legislature cannot
remedy under the power conferred
upon it, it is not answerable for such inconvenience. That which it cannot do within the limits pre? scribed to it, it cannot do at all. No
legislature in this country is able? and may the time never come when it shall be able?to apply to itself the memorable expression of a Roman Pontiff: 'Licet hoc de jure no possumus, volumus tarnen de
plentitudine potestatis.'
Wide Impact Webster insisted that the case
before the Court was important not
only for its impact upon Dartmouth but also for its impact on every college in the nation. "They have all a common principle of existence?the
inviolability of their charters.,, He called it "a dangerous, a most
dangerous experiment, to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions." The result of such an experiment? "Colleges and halls will be deserted
by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and
learning. These consequences are neither remote nor possible only. They are certain and immediate."
The lawyer said it would have been better if the issue had never come before the Supreme Court; if, instead, the rights of the college had been protected at the state level. "That hope has failed," he said, and then stated what lawyers and the American people have come to realize is the ultimate fact of their political existence: that all great questions come before the members of that Court and that its justices are members of the court of last resort for the American people; the last resort, that is, except for violence. "It is here," Daniel Webster charged the seven justices, "that those rights are now to be maintained, or they are
prostrated forever."
That, basically, was Daniel
Webster's case. He had spoken for four hours, beginning at eleven o'clock in the morning and finishing in mid-afternoon. The audience had been enthralled by this consummate actor. His presentation had been
wisely understated for the most part, exploding into emotion only occa?
sionally but always effectively. A
description of the presentation, believed to have been prepared by Joseph Story in 1830, twelve years after the arguments, described the "earnestness of manner [of Webster's
argument], and a depth of research, and a potency of phrase, which at once convinced you that his whole soul was in the cause; and that he had meditated over it in the deep silence of the night and studied it in the broad sunshine of the day." And when Webster used dramatics, according to this account, there was "in his whole air and manner, in the
fiery flashings of his eyes, the dark? ness of his contracted brow, the sudden and flying flushes of his cheeks, the quivering and scarcely manageable movements of his lips, in the deep guttural tones of his voice, in the struggle to suppress his emotions, in the almost conclusive clenchings of his hands without a seeming consciousness of the act, there was in these things what gave to his ora?
tory an almost superhuman influ? ence. . . ."
A later account by another witness, Chauncy A. Goodrich, recalled that
Story had been prepared to take notes on Webster's argument, but "Hour after hour I saw him fixed in the same
attitude, but not a single note on his
paper?the argument closed and he had not taken a single note." Good
J
rich recalled asking Story about this afterwards, and Story's replying: "Everything was so clear, so easy to
remember, that not a note seemed
necessary; in fact I thought nothing about my notes."
Controversial
How Daniel Webster closed his
arguments is a matter of historical
controversy. In the official Court record he ends with a quotation from Cicero in Latin. Goodrich supplied a different ending. His account has been questioned because it was written in 1852, long after the event.
Goodrich, however, was a minister, a
teacher, and an author. It is not unreasonable to assume that his 1852 account was based on notes made at the time. That he could have fabricated entirely or manufactured the quotations he attributed to
Webster is difficult to believe. He has Webster come to the end of his legal argument and stand "for some moments silent before the court, while every eye was fixed intently upon him." Finally, Webster turned to John Marshall and said:
This, sir, is my case! It is the case not merely of that humble institu? tion, it is the case of every college in our land! It is more! It is the case of
every eleemosynary institution
throughout our country?of all those great charities founded by the piety of our ancestors to allevi? ate human misery, and scatter
blessings along the pathway of life! It is more! It is, in some sense, the case of every man among us who has property of which he may be
stripped, for the question is simply this, 'Shall our state legislatures be allowed to take that which is not their own, to turn it from its
original use, and apply it to such ends and purposes as they in their discretion shall see fit!' To this point Goodrich's account is
a dramatic paraphrase of what the official record has Webster actually saying. And that gives his next
paragraph more credence. Goodrich
quoted Webster:
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
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you do so, you must carry through your work! You must extinguish, one after another, all these great 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! At this point, Webster's emotions,
"which he had thus far succeeded in
keeping down, broke forth." His lips quivered, his cheeks trembled, his
eyes filled with tears, his voice choked, "and he seemed struggling to the utmost, simply to gain that
mastery over himself which might save him from an unmanly burst of
feelings." Goodrich continued that he would not give "the few broken words of tenderness in which he went on to speak of his attachment to the
college. It seemed to be mingled throughout with the recollections of father, mother, brothers, and all the trials and preventions through which he had made his way into life."
According to Goodrich, the spec? tators believed the outburst "was
wholly unpremeditated?a pressure on his heart which sought relief in words and tears." Goodrich has Webster recovering control of himself after a few moments, and saying again to John Marshall: "Sir, I know not how others may feel . . ."?here
glancing at his opponents who sat near where he stood?"but for
myself, when I see my alma mater surrounded, like Cesar in the Senate house, by those who are reiterating stab upon stab, I would not for this
right hand have her say to me 'Et tu
quoque, mi fihV" When Webster at last sat down, the
entire courtroom was in tears. Story, in the account attributed to him, does not offer the same quotations, but does give a similar description of the courtroom when Webster concluded:
There was a painful anxiety toward the close. The whole audience had been wrought up to the highest excitement; many were dissolved in tears; many betrayed the most agi? tating mental struggles; many were
sinking under exhausting efforts to conceal their own emotion. When Mr. Webster ceased to speak, it was some minutes before anyone seemed inclined to break the
silence. The whole seemed but an
agonizing dream, from which the audience was slowly and almost un?
consciously awakening. One should not charge Webster
with artificiality in his emotions, nor accuse the members of the Supreme Court and the spectators in the court? room of gullibility. Suffice it to say, however, that Webster had made a similar argument, in some instances almost word for word alike, when he
participated in the case at a state court level at Exeter a few months earlier. It had appeared to be effective then, and there was no reason for Daniel Webster not to use it again before a new audience.
The other side was still to be heard from, but its arguments were anticlimactic. William Wirt said that the Supreme Court had taken the
position that it would not overrule a state action if there was any doubt it should, and he insisted that there was considerable doubt here; his point was that the original state charter did not constitute a contract, although the Fletcher v. Peck and Terrett v.
Taylor decisions had stated that such a charter had the attributes of a contract. In all, the arguments lasted three days, finishing March 12, 1818.
An Active Year
During the year between the argu? ments and the decision, Webster and his friends were active. He had his
argument printed and five copies sent to Joseph Story so that Story could distribute them to other justices of the
Supreme Court. "I send you five
copies of our argument," said Webster's covering letter. "If you send one of them to each of such of the judges as you think proper, you will of course do it in the manner least
likely to lead to a feeling that any indecorum has been committed by the plaintiffs."
Other approaches were made
through James Kent, the highest judicial officer in New York State and a man believed influential with some of the Supreme Court justices. Kent had indicated that his inclinations were with the state. Officials from the
college visited, him, gave him a copy of Webster's argument, and dis? cussed it with him. As a result he
changed his position, and then is
believed to have discussed the case with two Supreme Court justices, Brockholst Livingston of New York and William Johnson of South Carolina. Johnson was a key man because as a member of the Supreme Court in 1810 he had dissented in Fletcher v. Peck to the concept that a
grant by a state is a contract. When the decision finally was
handed down, of the seven justices of the Supreme Court, Thomas Todd, being absent, did not participate in the decision; Gabriel Duvall, the dissenter, did not offer an opinion; and the remaining four justices? Johnson, Livingston, Story, and
Washington?concurred in Mar? shall's decision that the Dartmouth
College charter could not be abused
by the state. Johnson, the first Jeffersonian appointed to the Court, "concurred, for the reasons stated by the Chief Justice." Bushrod Wash?
ington and Joseph Story wrote
separate concurring opinions, and Brockholst Livingston "concurred, for the reasons stated by the Chief
Justice, and Justices Washington and
Story." The closing paragraph in
Story's concurring opinion gives some indication of the trauma that the
members of the Supreme Court
obviously had felt as they had
trampled on this action by a state
legislature. Story wrote: I entertain great respect for the
legislature, whose acts are in ques? tion. I entertain no less respect for the enlightened tribunal whose decision we are called upon to review. In the examination, I have endeavored to keep my steps super antiquas vias of the law, under the
guidance of authority and princi? ple. It is not for judges to listen to the voice of persuasive eloquence or
popular appeal. We have nothing to do but to pronounce the law as we find it; and having done this, our justification must be left to the
impartial judgment of our country. Daniel Webster was elated,
naturally. "The opinion goes the whole length, and leaves nothing further to be said," he exclaimed. "... I feel a load removed from my own shoulders much heavier than
they have been accustomed to bear." The little college he loved had been saved.
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