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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