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 Cæsar 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. 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.

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 preeminently

“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.