Volume IV Part 27 (1/2)

High as such authority is, one still more exalted and final has spoken, and upon the precise point now in controversy. That authority is the Supreme Court itself. In Fletcher _vs._ Peck[697] this very tribunal declared specifically that ”a _grant_ is a contract, within the meaning of this provision; and that a grant by a state is also a contract, as much as the grant of an individual.”[698] This court went even further when, in New Jersey _vs._ Wilson,[699] it decided that ”a grant by a state before the revolution is as much to be protected as a grant since.”[700] The principle announced in these decisions was not new, even in America. Even before Fletcher _vs._ Peck and New Jersey _vs._ Wilson, this court denied[701] that a Legislature ”can repeal statutes creating private corporations, 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 please, without the consent or default of the corporators ...; and we think ourselves standing upon the principles of _natural justice_, upon the _fundamental laws of every free government_, upon the spirit and letter of the const.i.tution of the United States, and upon the decisions of the most respectable judicial tribunals, in resisting such a doctrine.”[702]

From the beginning of our Government until this very hour, continues Webster, such has been the uniform language of this honorable court. The principle that a Legislature cannot ”repeal statutes creating private corporations” must be considered as settled. It follows, then, that if a Legislature cannot repeal such laws entirely, it cannot repeal them in part--cannot ”impair them, or essentially alter them without the consent of the corporators.”[703] In the case last cited[704] the property granted was land; but the Dartmouth charter ”is embraced within the very terms of that decision,” since ”a grant of corporate powers and privileges is as much a _contract_ as a grant of land.”[705]

Even the State court concedes that if Dartmouth College is a private corporation, ”its rights stand on the same ground as those of an individual”; and that tribunal rests its judgment against the College on the sole ground that it is a public corporation.[706]

Dartmouth College is not the only inst.i.tution affected by this invasion of chartered rights. ”Every college, and all the literary inst.i.tutions of the country” are imperiled. All of them exist because of ”the inviolability of their charters.” Shall their fate depend upon ”the rise and fall of popular parties, and the fluctuations of political opinions”? If so, ”colleges and halls will ... become a theatre for the contention of politicks. Party and faction will be cherished in the places consecrated to piety and learning.”

”We had hoped, earnestly hoped,” exclaimed Webster, ”that the State court would protect Dartmouth College. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever.” He closed with a long Latin quotation, not a word of which Marshall understood, but which, delivered in Webster's sonorous tones and with Webster's histrionic power, must have been prodigiously impressive.[707]

Undoubtedly it was at this point that the incomparable actor, lawyer, and orator added to his prepared peroration that dramatic pa.s.sage which has found a permanent place in the literature of emotional eloquence.

Although given to the world a quarter of a century after Webster's speech was delivered, and transmitted through two men of vivid and creative imaginations, there certainly is some foundation for the story.

Rufus Choate in his ”Eulogy of Webster,” delivered at Dartmouth College in 1853, told, for the first time, of the incident as narrated to him by Professor Chauncey A. Goodrich, who heard Webster's argument. When Webster had apparently finished, says Goodrich, he ”stood for some moments silent before the Court, while every eye was fixed intently upon him.” At length, addressing the Chief Justice, Webster delivered that famous peroration ending: ”'Sir, you may destroy this little Inst.i.tution; 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 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_----'”[708]

Then, testifies Goodrich, Webster broke down with emotion, his lips quivered, his cheeks trembled, his eyes filled with tears, his voice choked. In a ”few broken words of tenderness” he spoke of his love for Dartmouth in such fas.h.i.+on that the listeners were impressed with ”the recollections of father, mother, brother, and all the trials and privations through which he had made his way into life.”[709]

Goodrich describes the scene in the court-room, ”during these two or three minutes,” thus: ”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 eyes suffused with tears; Mr.

Justice Was.h.i.+ngton 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, toward 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.” Recovering ”his composure, and fixing his keen eye on the Chief Justice,” Webster, ”in that deep tone with which he sometimes thrilled the heart of an audience,” exclaimed:

”'Sir, I know not how others may feel,' (glancing at the opponents of the College before him,) 'but, for myself, when I see my Alma Mater surrounded, like Caesar in the senate-house, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me, and say, _Et tu quoque, mi fili!_'”[710]

Exclusive of his emotional finish, Webster's whole address was made up from the arguments of Jeremiah Mason and Jeremiah Smith in the State court.[711] This fact Webster privately admitted, although he never publicly gave his a.s.sociates the credit.[712]

When Farrar's ”Report,” containing Mason's argument, was published, Story wrote Mason that he was ”exceedingly pleased” with it. ”I always had a desire that the question should be put upon the broad basis you have stated; and it was a matter of regret that we were so stinted in jurisdiction in the Supreme Court, that half the argument could not be met and enforced. You need not fear a comparison of your argument with any in our annals.”[713] Thus Story makes plain, what is apparent on the face of his own and Marshall's opinion, that he considered the master question involved to be that the College Acts were violative of fundamental principles of government. Could the Supreme Court have pa.s.sed upon the case without regard to the Const.i.tution, there can be no doubt that the decision would have been against the validity of the New Hamps.h.i.+re laws upon the ground on which Mason, Smith, and Webster chiefly relied.

Webster, as we have seen, had little faith in winning on the contract clause and was nervously anxious that the controversy should be presented to the Supreme Court by means of a case which would give that tribunal greater lat.i.tude than was afforded by the ”stinted jurisdiction” of which Story complained. Indeed, Story openly expressed impatience that the court was restricted to a consideration of the contract clause. Upon his return to Ma.s.sachusetts after the argument, Story as much as told Webster that another suit should be brought which could be taken to the Supreme Court, and which would permit the court to deal with all the questions raised by the New Hamps.h.i.+re College Acts.

Webster's report of this conversation is vital to an understanding of the views of the Chief Justice, as well as of those of Story, since the latter undoubtedly stated Marshall's views as well as his own. ”I saw Judge Story as I came along,” Webster reported to Mason. ”He is evidently expecting a case which shall present all the questions. It is not of great consequence whether the actions or action, go up at this term, except that it would give it an earlier standing on the docket next winter.

”The question which we must raise in one of these actions, is, 'whether, by the _general principles of our governments_, the State Legislatures be not restrained from divesting vested rights?' This, of course, independent of the const.i.tutional provision respecting contracts. On this question [the maintenance of vested rights by ”general principles”]

I have great confidence in a decision on the right side. This is the proposition with which you began your argument at Exeter, and which I endeavored to state from your minutes at Was.h.i.+ngton.... On _general_ principles, I am very confident the court at Was.h.i.+ngton would be with us.”[714]

Holmes followed Webster. ”The G.o.d-like Daniel” could not have wished for a more striking contrast to himself. In figure, bearing, voice, eye, intellect, and personality, the Maine Congressman, politician, and stump-speaker, was the ant.i.thesis of Webster. For three hours Holmes declaimed ”the merest stuff that was ever uttered in a county court.”[715] His ”argument” was a diffuse and florid repet.i.tion of the opinion of Chief Justice Richardson, and was one of those empty and long-winded speeches which Marshall particularly disliked.

Wirt did his best to repair the damage done by Holmes; but he was so indifferently prepared,[716] and so physically exhausted, that, breaking down in the midst of his address, he asked the court to adjourn that he might finish next day;[717] and this the bored and weary Justices were only too willing to do. Wirt added nothing to the reasoning and facts of Richardson's opinion which was in the hands of Marshall and his a.s.sociates.

The argument was closed by Joseph Hopkinson; and here again Fate acted as stage manager for Dartmouth, since the author of ”Hail Columbia”[718]

was as handsome and impressive a man as Webster, though of an exactly opposite type. His face was that of the lifelong student, thoughtful and refined. His voice, though light, had a golden tone. His manner was quiet, yet distinguished.

[Ill.u.s.tration: JOSEPH HOPKINSON]

Joseph Hopkinson showed breeding in every look, movement, word, and intonation.[719] He had a beautiful and highly trained mind, equipped with immense and accurate knowledge systematically arranged.[720] It is unfortunate that s.p.a.ce does not permit even a brief _precis_ of Hopkinson's admirable argument.[721] He quite justified Webster's a.s.surance to Brown that ”Mr. Hopkinson ... will do all that man can do.”[722]

At eleven o'clock of March 13, 1818, the morning after the argument was concluded, Marshall announced that some judges were of ”different opinions, and that some judges had not formed opinions; consequently, the cause must be continued.”[723] On the following day the court adjourned.

Marshall, Was.h.i.+ngton, and Story[724] were for the College, Duval and Todd were against it, and Livingston and Johnson had not made up their minds.[725] During the year that intervened before the court again met in February, 1819, hope sprang up in the hearts of Dartmouth's friends, and they became incessantly active in every legitimate way. Webster's argument was printed and placed in the hands of all influential lawyers in New England.

Chancellor James Kent of New York was looked upon by the bench and bar of the whole country as the most learned of American jurists and, next to Marshall, the ablest.[726] The views of no other judge were so sought after by his fellow occupants of the bench. Charles Marsh of New Hamps.h.i.+re, one of the Trustees of the College and a warm friend of Kent, sent him Webster's argument. While on a vacation in Vermont Kent had read the opinion of Chief Justice Richardson and, ”on a hasty perusal of it,” was at first inclined to think the College Acts valid, because he was ”led by the opinion to a.s.sume the fact that Dartmouth College was a public establishment for purposes of a general nature.”[727] Webster's argument changed Kent's views.

During the summer of 1818, Justice Johnson, of the National Supreme Court, was in Albany, where Kent lived, and conferred with the Chancellor about the Dartmouth case. Kent told Johnson that he thought the New Hamps.h.i.+re College Acts to be against natural right and in violation of the contract clause of the National Const.i.tution.[728] It seems fairly certain also that Livingston asked for the Chancellor's opinion, and was influenced by it.