The Great Speeches and Orations of Daniel Webster Part 2

But the defect of this speech, which must still be considered, on the whole, the most inspired product of Burke's great nature, was this,-- that it did not strike its hearers or readers as having _reality_ for its basis or the superstructure raised upon it. Englishmen could not believe then, and most of them probably do not believe now, that it had any solid foundation in incontrovertible facts. It did not "fit in" to their ordinary modes of thought; and it has never been ranked with Burke's "organized" orations; it has never come home to what Bacon called the "business and bosoms" of his countrymen. They have generally dismissed it from their imaginations as "a phantasmagoria and a hideous dream" created by Burke under the impulse of the intense hatred he felt for the administration which succeeded the overthrow of the government, which was founded on the coalition of Fox and North.

Now, in simple truth, the speech is the most masterly statement of facts, relating to the oppression of millions of the people of India, which was ever forced on the attention of the House of Commons,--a legislative a.s.sembly which, it may be incidentally remarked, was practically responsible for the just government of the immense Indian empire of Great Britain. It is curious that the main facts on which the argument of Burke rests have been confirmed by James Mill, the coldest-blooded historian that ever narrated the enormous crimes which attended the rise and progress of the British power in Hindostan, and a man who also had a strong intellectual antipathy to the mind of Burke.

In making the speech, Burke had doc.u.mentary evidence of a large portion of the transactions he denounced, and had _divined_ the rest. Mill supports him both as regards the facts of which Burke had positive knowledge, and the facts which he deductively inferred from the facts he knew. Having thus a strong foundation for his argument, he exerted every faculty of his mind, and every impulse of his moral sentiment and moral pa.s.sion, to overwhelm the leading members of the administration of Pitt, by attempting to make them accomplices in crimes which would disgrace even slave-traders on the Guinea coast. The merely intellectual force of his reasoning is crushing; his a.n.a.lysis seems to be sharpened by his hatred; and there is no device of contempt, scorn, derision, and direct personal attack, which he does not unsparingly use. In the midst of all this mental tumult, inestimable maxims of moral and political wisdom are shot forth in short sentences, which have so much of the sting and brilliancy of epigram, that at first we do not appreciate their depth of thought; and through all there burns such a pitiless fierceness of moral reprobation of cruelty, injustice, and wrong, that all the accredited courtesies of debate are violated, once, at least, in every five minutes. In any American legislative a.s.sembly he would have been called to order at least once in five minutes. The images which the orator brings in to give vividness to his argument are sometimes coa.r.s.e; but, coa.r.s.e as they are, they admirably reflect the moral turpitude of the men against whom he inveighs. Among these is the image with which he covers Dundas, the special friend of Pitt, with a ridicule which promises to be immortal. Dundas, on the occasion when Fox and Burke called for papers by the aid of which they proposed to demonstrate the iniquity of the scheme by which the ministry proposed to settle the debts of the Nabob of Arcot, pretended that the production of such papers would be indelicate,--"that this inquiry is of a delicate nature, and that the state will suffer detriment by the exposure of this transaction." As Dundas had previously brought out six volumes of Reports, generally confirming Burke's own views of the corruption and oppression which marked the administration of affairs in India, he laid himself open to Burke's celebrated a.s.sault. Dundas and delicacy, he said, were "a rare and singular coalition." And then follows an image of colossal coa.r.s.eness, such as might be supposed capable of rousing thunder-peals of laughter from a company of festive giants,--an image which Lord Brougham declared offended _his_ sensitive taste,--the sensitive taste of one of the most formidable legal and legislative bullies that ever appeared before the juries or Parliament of Great Britain, and who never hesitated to use any ill.u.s.tration, however vulgar, which he thought would be effective to degrade his opponents.

But whatever may be thought of the indelicacy of Burke's image, it was one eminently adapted to penetrate through the thick hide of the minister of state at whom it was aimed, and it shamed him as far as a profligate politician like Dundas was capable of feeling the sensation of shame. But there are also flashes, or rather flames, of impa.s.sioned imagination, in the same speech, which rush up from the main body of its statements and arguments, and remind us of nothing so much as of those jets of incandescent gas which, we are told by astronomers, occasionally leap, from the extreme outer covering of the sun, to the height of a hundred or a hundred and sixty thousand miles, and testify to the terrible forces raging within it. After reading this speech for the fiftieth time, the critic cannot free himself from the rapture of admiration and amazement which he experienced in his first fresh acquaintance with it. Yet its delivery in the House of Commons (February 28, 1785) produced an effect so slight, that Pitt, after a few minutes'

consultation with Grenville, concluded that it was not worth the trouble of being answered; and the House of Commons, obedient to the Prime Minister's direction, negatived, by a large majority, the motion in advocating which Burke poured out the wonderful treasures of his intellect and imagination. To be sure, the House was tired to death with the discussion, was probably very sleepy, and the orator spoke five hours after the members had already shouted, "Question! Question!"

The truth is, that this speech, unmatched though it is in the literature of eloquence, had not, as has been previously stated, the air of reality. It struck the House as a magnificent Oriental dream, as an Arabian Nights' Entertainment, as a tale told by an inspired madman, "full of sound and fury, signifying nothing"; and the evident partisan intention of the orator to blast Pitt's administration by exhibiting its complicity in one of the most enormous frauds recorded in history, confirmed the dandies, the c.o.c.kneys, the bankers, and the country gentlemen, who, as members of the House of Commons, stood by Pitt with all the combined force of their levity, their venality, and their stupidity, in the propriety of voting Burke down. And even now, when the substantial truth of all the facts he alleged is established on evidence which convinces historians, the admiring reader can understand why it failed to convince Burke's contemporaries, and why it still appears to lack the characteristics of a speech thoroughly organized. Indeed, the mind of Burke, when it was delivered, can only be compared to a volcanic mountain in eruption;--not merely a volcano like that of Vesuvius, visited by scientists and amateurs in crowds, when it deigns to pour forth its flames and lava for the entertainment of the mult.i.tude; but a lonely volcano, like that of Etna, rising far above Vesuvius in height, far removed from all the vulgar curiosity of a body of tourists, but rending the earth on which it stands with the mighty earthquake throes of its fiery centre and heart. The moral pa.s.sion,--perhaps it would be more just to say the moral fury,--displayed in the speech, is elemental, and can be compared to nothing less intense than the earth's interior fire and heat.

Now in Webster's great legislative efforts, his mind is never exhibited in a state of eruption. In the most excited debates in which he bore a prominent part, nothing strikes us more than the admirable self-possession, than the majestic inward calm, which presides over all the operations of his mind and the impulses of his sensibility, so that, in building up the fabric of his speech, he has his reason, imagination, and pa.s.sion under full control,--using each faculty and feeling as the occasion may demand, but never allowing himself to be used _by_ it,--and always therefore conveying the impression of power in reserve, while he may, in fact, be exercising all the power he has to the utmost. In laboriously erecting his edifice of reasoning he also studiously regards the intellects and the pa.s.sions of ordinary men; strives to bring his mind into cordial relations with theirs; employs every faculty he possesses to give reality, to give even visibility, to his thoughts; and though he never made a speech which rivals that of Burke on the Nabob of Arcot's Debts, in respect to grasp of understanding, astounding wealth of imagination and depth of moral pa.s.sion, he always so contrived to organize his materials into a complete whole, that the result stood out clearly to the sight of the mind, as a structure resting on strong foundations, and reared to due height by the mingled skill of the artisan and the artist. When he does little more than weld his materials together, he is still an artificer of the old school of giant workmen, the school that dates its pedigree from Tubal Cain.

After all this wearisome detail and dilution of the idea attempted to be expressed, it may be that I have failed to convey an adequate impression of what const.i.tutes Webster's distinction among orators, as far as orators have left speeches which are considered an invaluable addition to the literature of the language in which they were originally delivered. Everybody understands why any one of the great sermons of Jeremy Taylor, or the sermon of Dr. South on "Man created in the Image of G.o.d," or the sermon of Dr. Barrow on "Heavenly Rest," differs from the millions on millions of doubtless edifying sermons that have been preached and printed during the last two centuries and a half; but everybody does not understand the distinction between one brilliant oration and another, when both made a great sensation at the time, while only one survived in literature. Probably Charles James Fox was a more effective speaker in the House of Commons than Edmund Burke, probably Henry Clay was a more effective speaker in Congress than Daniel Webster; but when the occasions on which their speeches were made are found gradually to fade from the memory of men, why is it that the speeches of Fox and Clay have no recognized position in literature, while those of Burke and Webster are ranked with literary productions of the first cla.s.s? The reason is as really obvious as that which explains the exceptional value of some of the efforts of the great orators of the pulpit. Jeremy Taylor, Dr. South, and Dr. Barrow, different as they were in temper and disposition, succeeded in "organizing" some masterpieces in their special department of intellectual and moral activity; and the same is true of Burke and Webster in the departments of legislation and political science. The "occasion" was merely an opportunity for the consolidation into a speech of the rare powers and attainments, the large personality and affluent thought, which were the spiritual possessions of the man who made it,--a speech which represented the whole intellectual manhood of the speaker,--a manhood in which knowledge, reason, imagination, and sensibility were all consolidated under the directing power of will.

A pertinent example of the difference we have attempted to indicate may be easily found in contrasting Fox's closing speech on the East India Bill with Burke's on the same subject. For immediate effect on the House of Commons, it ranks with the most masterly of Fox's Parliamentary efforts. The hits on his opponents were all "telling." The _argumentum ad hominem_, embodied in short, sharp statements, or startling interrogatories, was never employed with more brilliant success. The reasoning was rapid, compact, enc.u.mbered by no long enumeration of facts, and, though somewhat unscrupulous here and there, was driven home upon his adversaries with a skill that equalled its audacity. It may be said that there is not a sentence in the whole speech which was not calculated to sting a sleepy audience into attention, or to give delight to a fatigued audience which still managed to keep its eyes and minds wide open. Even in respect to the principles of liberty and justice, which were the animating life of the bill, Fox's terse sentences contrast strangely with the somewhat more lumbering and elaborate paragraphs of Burke. "What," he exclaims, putting his argument in his favorite interrogative form,--"what is the most odious species of tyranny? Precisely that which this bill is meant to annihilate. That a handful of men, free themselves, should exercise the most base and abominable despotism over millions of their fellow-creatures; that innocence should be the victim of oppression; that industry should toil for rapine; that the harmless laborer should sweat, not for his own benefit, but for the luxury and rapacity of tyrannic depredation;--in a word, that thirty millions of men, gifted by Providence with the ordinary endowments of humanity, should groan under a system of despotism unmatched in all the histories of the world? What is the end of all government? Certainly, the happiness of the governed. Others may hold different opinions; but this is mine, and I proclaim it. What, then, are we to think of a government whose good fortune is supposed to spring from the calamities of its subjects, whose aggrandizement grows out of the miseries of mankind? This is the kind of government exercised under the East Indian Company upon the natives of Hindostan; and the subversion of that infamous government is the main object of the bill in question." And afterwards he says, with admirable point and pungency of statement: "Every line in both the bills which I have had the honor to introduce, presumes the possibility of bad administration; for every word breathes suspicion. This bill supposes that men are but men. It confides in no integrity; it trusts no character; it inculcates the wisdom of a jealousy of power, and annexes responsibility, not only to every _action_, but even to the _inaction_ of those who are to dispense it. The necessity of these provisions must be evident, when it is known that the different misfortunes of the company have resulted not more from what their servants _did_, than from what the _masters did not_."

There is a directness in such sentences as these which we do not find in Burke's speech on the East India Bill; but Burke's remains as a part of English literature, and in form and substance, especially in substance, is so immensely superior to that of Fox, that, in quoting sentences from the latter, one may almost be supposed to rescue them from that neglect which attends all speeches which do not reach beyond the occasion which calls them forth. In Bacon's phrase, the speech of Fox shows "small matter, and infinite agitation of wit"; in Burke's, we discern large matter with an abundance of "wit" proper to the discussion of the matter, but nothing which suggests the idea of mere "agitation." Fox, in his speeches, subordinated every thing to the immediate impression he might make on the House of Commons. He deliberately gave it as his opinion, that a speech that read well must be a bad speech; and, in a literary sense, the House of Commons, which he entered before he was twenty, may be called both the cradle and the grave of his fame. It has been said that he was a debater whose speeches should be studied by every man who wishes "to learn the science of logical defence"; that he alone, among English orators, resembles Demosthenes, inasmuch as his reasoning is "penetrated and made red-hot by pa.s.sion"; and that nothing could excel the effect of his delivery when "he was in the full paroxysm of inspiration, foaming, screaming, choked by the rushing mult.i.tude of his words." But not one of his speeches, not even that on the East India Bill, or on the Westminster Scrutiny, or on the Russian Armament, or on Parliamentary Reform, or on Mr. Pitt's Rejection of Bonaparte's Overtures for Peace, has obtained an abiding place in the literature of Great Britain. It would be no disparagement to an educated man, if it were said that he had never read these speeches; but it would be a serious bar to his claim to be considered an English scholar, if he confessed to be ignorant of the great speeches of Burke; for such a confession would be like admitting that he had never read the first book of Hooker's Ecclesiastical Polity, Bacon's Essays and Advancement of Learning, Milton's Areopagitica, Butler's a.n.a.logy, and Adam Smith's Wealth of Nations.

When we reflect on the enormous number of American speeches which, when they were first delivered, were confidently predicted, by appreciating friends, to insure to the orators a fame which would be immortal, one wonders a little at the quiet persistence of the speeches of Webster in refusing to die with the abrupt suddenness of other orations, which, at the time of their delivery, seemed to have an equal chance of renown.

The lifeless remains of such unfortunate failures are now entombed in that dreariest of all mausoleums, the dingy quarto volumes, hateful to all human eyes, which are lettered on the back with the t.i.tle of "Congressional Debates,"--a collection of printed matter which members of Congress are wont to send to a favored few among their const.i.tuents, and which are immediately consigned to the dust-barrel or sold to pedlers in waste paper, according as the rage of the recipients takes a scornful or an economical direction. It would seem that the speeches of Webster are saved from this fate, by the fact that, in them, the mental and moral life of a great man, and of a great master of the English language, are organized in a palpable intellectual form. The reader feels that they have some of the substantial qualities which he recognizes in looking at the gigantic constructions of the master workmen among the crowd of the world's engineers and architects, in looking at the organic products of Nature herself, and in surveying, through the eye of his imagination, those novel reproductions of Nature which great poets have embodied in works which are indelibly stamped with the character of deathlessness.

But Webster is even more obviously a poet--subordinating "the shows of things to the desires of the mind"--in his magnificent idealization, or idolization, of the Const.i.tution and the Union. By the magic of his imagination and sensibility he contrived to impress on the minds of a majority of the people of the free States a vague, grand idea that the Const.i.tution was a sacred instrument of government,--a holy shrine of fundamental law, which no unhallowed hands could touch without profanation,--a digested system of rights and duties, resembling those inst.i.tutes which were, in early times, devised by the immortal G.o.ds for the guidance of infirm mortal man; and the mysterious creatures, half divine and half human, who framed this remarkable doc.u.ment, were always reverently referred to as "the Fathers,"--as persons who excelled all succeeding generations in sagacity and wisdom; as inspired prophets, who were specially selected by Divine Providence to frame the political scriptures on which our political faith was to be based, and by which our political reason was to be limited. The splendor of the glamour thus cast over the imaginations and sentiments of the people was all the more effective because it was an effluence from the mind of a statesman who, of all other statesmen of the country, was deemed the most practical, and the least deluded by any misguiding lights of fancy and abstract speculation.

There can be little doubt that Webster's impressive idealization of the Const.i.tution gave a certain narrowness to American thinking on const.i.tutional government and the science of politics and legislation.

Foreigners, of the most liberal views, could not sometimes restrain an expression of wonder, when they found that our most intelligent men, even our jurists and publicists, hardly condescended to notice the eminent European thinkers on the philosophy of government, so absorbed were they in the contemplation of the perfection of their own. When the great civil war broke out, hundreds of thousands of American citizens marched to the battle-field with the grand pa.s.sages of Webster glowing in their hearts. They met death cheerfully in the cause of the "Const.i.tution and Union," as by him expounded and idealized; and if they were so unfortunate as not to be killed, but to be taken captive, they still rotted to death in Southern prisons, sustained by sentences of Webster's speeches which they had declaimed as boys in their country schools. Of all the triumphs of Webster as a leader of public opinion, the most remarkable was his infusing into the minds of the people of the free States the belief that the Const.i.tution as it existed in his time was an organic fact, springing from the intelligence, hearts, and wills of the people of the United States, and not, as it really was, an ingenious mechanical contrivance of wise men, to which the people, at the time, gave their a.s.sent.

The const.i.tutions of the separate States of the Union were doubtless rooted in the habits, sentiments, and ideas of their inhabitants. But the Const.i.tution of the United States could not possess this advantage, however felicitously it may have been framed for the purpose of keeping, for a considerable period, peace between the different sections of the country. As long, therefore, as the inst.i.tution of negro slavery lasted, it could not be called a Const.i.tution of States organically "United"; for it lacked the principle of _growth_, which characterizes all const.i.tutions of government which are really adapted to the progressive needs of a people, if the people have in them any impulse which stimulates them to advance. The unwritten const.i.tution of Great Britain has this advantage, that a decree of Parliament can alter the whole representative system, annihilating by a vote of the two houses all laws which the Parliament had enacted in former years. In Great Britain, therefore, a measure which any Imperial Parliament pa.s.ses becomes at once the supreme law of the land, though it may nullify a great number of laws which previous Parliaments had pa.s.sed under different conditions of the sentiment of the nation. Our Const.i.tution, on the other hand, provides for the contingencies of growth in the public sentiment only by amendments to the Const.i.tution. These amendments require more than a majority of all the political forces represented in Congress; and Mr.

Calhoun, foreseeing that a collision must eventually occur between the two sections, carried with him, not only the South, but a considerable minority of the North, in resisting any attempt to limit the _extension_ of slavery. On this point the pa.s.sions and principles of the people of the slave-holding and the majority of the people of the non-slave-holding States came into violent opposition; and there was no possibility that any amendment to the Const.i.tution could be ratified, which would represent either the growth of the Southern people in their ever-increasing belief that negro slavery was not only a good in itself, but a good which ought to be extended, or the growth of the Northern people in their ever-increasing hostility both to slavery and its extension. Thus two principles, each organic in its nature, and demanding indefinite development, came into deadly conflict under the mechanical forms of a Const.i.tution which was not organic.

A considerable portion of the speeches in this volume is devoted to denunciations of violations of the Const.i.tution perpetrated by Webster's political opponents. These violations, again, would seem to prove that written const.i.tutions follow practically the same law of development which marks the progress of the unwritten. By a strained system of Congressional interpretation, the Const.i.tution has been repeatedly compelled to yield to the necessities of the party dominant, for the time, in the government; and has, if we may believe Webster, been repeatedly changed without being const.i.tutionally "amended." The causes which led to the most terrible civil war recorded in history were silently working beneath the forms of the Const.i.tution,--both parties, by the way, appealing to its provisions,--while Webster was idealizing it as the utmost which humanity could come to in the way of civil government. In 1848, when nearly all Europe was in insurrection against its rulers, he proudly said that our Const.i.tution promised to be the _oldest_, as well as the best, in civilized states. Meanwhile the inst.i.tution of negro slavery was undermining the whole fabric of the Union. The moral division between the South and North was widening into a division between the religion of the two sections. The Southern statesmen, economists, jurists, publicists, and ethical writers had adapted their opinions to the demands which the defenders of the inst.i.tution of slavery imposed on the action of the human intellect and conscience; but it was rather startling to discover that the Christian religion, as taught in the Southern States, was a religion which had no vital connection with the Christianity taught in the Northern States.

There is nothing more astounding, to a patient explorer of the causes which led to the final explosion, than this opposition of religions. The mere form of the dogmas common to the religion of both sections might be verbally identical; but a volume of sermons by a Southern doctor of divinity, as far as he touched on the matter of slavery, was as different from one published by his Northern brother, in the essential moral and humane elements of Christianity, as though they were divided from each other by a gulf as wide as that which yawns between a Druid priest and a Christian clergyman.

The politicians of the South, whether they were the mouthpieces of the ideas and pa.s.sions of their const.i.tuents, or were, as Webster probably thought, more or less responsible for their foolishness and bitterness, were ever eager to precipitate a conflict, which Webster was as eager to prevent, or at least to postpone. It was fortunate for the North, that the inevitable conflict did not come in 1850, when the free States were unprepared for it. Ten years of discussion and preparation were allowed; when the war broke out, it found the North in a position to meet and eventually to overcome the enemies of the Union; and the Const.i.tution, not as it _was_, but as it _is_, now represents a form of government which promises to be permanent; for after pa.s.sing through its baptism of fire and blood, the Const.i.tution contains nothing which is not in harmony with any State government founded on the principle of equal rights which it guarantees, and is proof against all attacks but those which may proceed from the extremes of human folly and wickedness. But that, before the civil war, it was preserved so long under conditions which constantly threatened it with destruction, is due in a considerable degree to the circ.u.mstance that it found in Daniel Webster its poet as well as its "expounder."

In conclusion it may be said that the style of Webster is pre-eminently distinguished by manliness. Nothing little, weak, whining, or sentimental can be detected in any page of the six volumes of his works.

A certain strength and grandeur of personality is prominent in all his speeches. When he says "I," or "my," he never appears to indulge in the bravado of self-a.s.sertion, because the words are felt to express a positive, stalwart, almost colossal manhood, which had already been implied in the close-knit sentences in which he embodied his statements and arguments. He is an eminent instance of the power which character communicates to style. Though evidently proud, self-respecting, and high-spirited, he is ever above mere vanity and egotism. Whenever he gives emphasis to the personal p.r.o.noun the reader feels that he had as much earned the right to make his opinion an authority, as he had earned the right to use the words he employs to express his ideas and sentiments. Thus, in the celebrated _Smith Will_ trial, his antagonist, Mr. Choate, quoted a decision of Lord Chancellor Camden. In his reply, Webster argued against its validity as though it were merely a proposition laid down by Mr. Choate. "But it is not mine, it is Lord Camden's" was the instant retort. Webster paused for half a minute, and then, with his eye fixed on the presiding judge, he replied: "Lord Camden was a great judge; he is respected by every American, for he was on our side in the Revolution; but, may it please your honor, _I_ differ from my Lord Camden." There was hardly a lawyer in the United States who could have made such a statement without exposing himself to ridicule; but it did not seem at all ridiculous, when the "I" stood for Daniel Webster. In his early career as a lawyer, his mode of reasoning was such as to make him practically a thirteenth juror in the panel; when his fame was fully established, he contrived, in some mysterious way, to seat himself by the side of the judges on the bench, and appear to be consulting with them as a jurist, rather than addressing them as an advocate. The personality of the man was always suppressed until there seemed to be need of a.s.serting it; and then it was proudly pushed into prominence, though rarely pa.s.sing beyond the limits which his acknowledged eminence as a statesman and lawyer did not justify him in a.s.serting it. Among the selections in the present volume where his individuality becomes somewhat aggressive, and breaks loose from the restraints ordinarily self-imposed on it, may be mentioned his speech on his Reception at Boston (1842), his Marshfield Speech (1848), and his speech at his Reception at Buffalo (1851). Whatever may be thought of the course of argument pursued in these, they are at least thoroughly penetrated with a manly spirit,--a manliness somewhat haughty and defiant, but still consciously strong in its power to return blow for blow, from whatever quarter the a.s.sault may come.

But the real intellectual and moral manliness of Webster underlies all his great orations and speeches, even those where the animating life which gives them the power to persuade, convince, and uplift the reader's mind, seems to be altogether impersonal; and this plain force of manhood, this st.u.r.dy grapple with every question that comes before his understanding for settlement, leads him contemptuously to reject all the meretricious aids and ornaments of mere rhetoric, and is prominent, among the many exceptional qualities of his large nature, which have given him a high position among the prose-writers of his country as a consummate master of English style.

THE GREAT ORATIONS AND SPEECHES

OF

DANIEL WEBSTER.

THE DARTMOUTH COLLEGE CASE.

ARGUMENT BEFORE THE SUPREME COURT OF THE UNITED STATES, AT WASHINGTON, ON THE 10TH OF MARCH, 1818.

[The action, The Trustees of Dartmouth College v. William H. Woodward, was commenced in the Court of Common Pleas, Grafton County, State of New Hampshire, February term, 1817. The declaration was trover for the books of record, original charter, common seal, and other corporate property of the College. The conversion was alleged to have been made on the 7th day of October, 1816. The proper pleas were filed, and by consent the cause was carried directly to the Superior Court of New Hampshire, by appeal, and entered at the May term, 1817. The general issue was pleaded by the defendant, and joined by the plaintiffs. The facts in the case were then agreed upon by the parties, and drawn up in the form of a special verdict, reciting the charter of the College and the acts of the legislature of the State, pa.s.sed June and December, 1816, by which the said corporation of Dartmouth College was _enlarged_ and _improved_, and the said charter _amended_.

The question made in the case was, whether those acts of the legislature were valid and binding upon the corporation, without their acceptance or a.s.sent, and not repugnant to the Const.i.tution of the United States. If so, the verdict found for the defendants; otherwise, it found for the plaintiffs.

The cause was continued to the September term of the court in Rockingham County, where it was argued; and at the November term of the same year, in Grafton County, the opinion of the court was delivered by Chief Justice Richardson, in favor of the validity and const.i.tutionality of the acts of the legislature; and judgment was accordingly entered for the defendant on the special verdict.

Thereupon a writ of error was sued out by the original plaintiffs, to remove the cause to the Supreme Court of the United States; where it was entered at the term of the court holden at Washington on the first Monday of February, 1818.

The cause came on for argument on the 10th day of March, 1818, before all the judges. It was argued by Mr. Webster and Mr. Hopkinson for the plaintiffs in error, and by Mr. Holmes and the Attorney-General (Wirt) for the defendant in error.

At the term of the court holden in February, 1819, the opinion of the judges was delivered by Chief Justice Marshall, declaring the acts of the legislature unconst.i.tutional and invalid, and reversing the judgment of the State Court. The court, with the exception of Mr. Justice Duvall, were unanimous.

The following was the argument of Mr. Webster for the plaintiffs in error.]

The general question is, whether the acts of the legislature of New Hampshire of the 27th of June, and of the 18th and 26th of December, 1816, are valid and binding on the plaintiffs, _without their acceptance or a.s.sent_.

The charter of 1769 created and established a corporation, to consist of twelve persons, and no more; to be called the "Trustees of Dartmouth College." The preamble to the charter recites, that it is granted on the application and request of the Rev. Eleazer Wheelock: That Dr. Wheelock, about the year 1754, established a charity school, at his own expense, and on his own estate and plantation: That for several years, through the a.s.sistance of well-disposed persons in America, granted at his solicitation, he had clothed, maintained, and educated a number of native Indians, and employed them afterwards as missionaries and schoolmasters among the savage tribes: That, his design promising to be useful, he had const.i.tuted the Rev. Mr. Whitaker to be his attorney, with power to solicit contributions, in England, for the further extension and carrying on of his undertaking; and that he had requested the Earl of Dartmouth, Baron Smith, Mr. Thornton, and other gentlemen, to receive such sums as might be contributed, in England, towards supporting his school, and to be trustees thereof, for his charity; which these persons had agreed to do: That thereupon Dr. Wheelock had executed to them a deed of trust, in pursuance of such agreement between him and them, and, for divers good reasons, had referred it to these persons to determine the place in which the school should be finally established: And, to enable them to form a proper decision on this subject, had laid before them the several offers which had been made to him by the several governments in America, in order to induce him to settle and establish his school within the limits of such governments for their own emolument, and the increase of learning in their respective places, as well as for the furtherance of his general original design: And inasmuch as a number of the proprietors of lands in New Hampshire, animated by the example of the Governor himself and others, and in consideration that, without any impediment to its original design, the school might be enlarged and improved, to promote learning among the English, and to supply ministers to the people of that Province, had promised large tracts of land, provided the school should be established in that Province, the persons before mentioned, having weighed the reasons in favor of the several places proposed, had given the preference to this Province, and these offers: That Dr.

Wheelock therefore represented the necessity of a legal incorporation, and proposed that certain gentlemen in America, whom he had already named and appointed in his will to be trustees of his charity after his decease, should compose the corporation. Upon this recital, and in consideration of the laudable original design of Dr. Wheelock, and willing that the best means of education be established in New Hampshire, for the benefit of the Province, the king granted the charter, by the advice of his Provincial Council.

The substance of the facts thus recited is, that Dr. Wheelock had founded a charity, on funds owned and procured by himself; that he was at that time the sole dispenser and sole administrator, as well as the legal owner, of these funds; that he had made his will, devising this property in trust, to continue the existence and uses of the school, and appointed trustees; that, in this state of things, he had been invited to fix his school permanently in New Hampshire, and to extend the design of it to the education of the youth of that Province; that before he removed his school, or accepted this invitation, which his friends in England had advised him to accept, he applied for a charter, to be granted, not to whomsoever the king or government of the Province should please, but to such persons as he named and appointed, namely, the persons whom he had already appointed to be the future trustees of his charity by his will.

The charter, or letters patent, then proceed to create such a corporation, and to appoint twelve persons to const.i.tute it, by the name of the "Trustees of Dartmouth College"; to have perpetual existence as such corporation, and with power to hold and dispose of lands and goods, for the use of the college, with all the ordinary powers of corporations. They are in their discretion to apply the funds and property of the college to the support of the president, tutors, ministers, and other officers of the college, and such missionaries and schoolmasters as they may see fit to employ among the Indians. There are to be twelve trustees for ever, _and no more_; and they are to have the right of filling vacancies occurring in their own body. The Rev. Mr.

Wheelock is declared to be the founder of the college, and is, by the charter, appointed first president, with power to appoint a successor by his last will. All proper powers of government, superintendence, and visitation are vested in the trustees. They are to appoint and remove all officers at their discretion; to fix their salaries, and a.s.sign their duties; and to make all ordinances, orders, and laws for the government of the students. To the end that the persons who had acted as depositaries of the contributions in England, and who had also been contributors themselves, might be satisfied of the good use of their contributions, the president was annually, or when required, to transmit to them an account of the progress of the inst.i.tution and the disburs.e.m.e.nts of its funds, so long as they should continue to act in that trust. These letters patent are to be good and effectual, in law, _against the king, his heirs and successors for ever_, without further grant or confirmation; and the trustees are to hold all and singular these privileges, advantages, liberties, and immunities to them and to their successors for ever.

No funds are given to the college by this charter. A corporate existence and capacity are given to the trustees, with the privileges and immunities which have been mentioned, to enable the founder and his a.s.sociates the better to manage the funds which they themselves had contributed, and such others as they might afterwards obtain.

After the inst.i.tution thus created and const.i.tuted had existed, uninterruptedly and usefully, nearly fifty years, the legislature of New Hampshire pa.s.sed the acts in question.

The first act makes the twelve trustees under the charter, and nine other individuals, to be appointed by the Governor and Council, a corporation, by a new name; and to this new corporation transfers all the _property, rights, powers, liberties, and privileges_ of the old corporation; with further power to establish new colleges and an inst.i.tute, and to apply all or any part of the funds to these purposes; subject to the power and control of a board of twenty-five overseers, to be appointed by the Governor and Council.

The second act makes further provisions for executing the objects of the first, and the last act authorizes the defendant, the treasurer of the plaintiffs, to retain and hold their property, against their will.

If these acts are valid, the old corporation is abolished, and a new one created. The first act does, in fact, if it can have any effect, create a new corporation, and transfer to it all the property and franchises of the old. The two corporations are not the same in anything which essentially belongs to the existence of a corporation. They have different names, and different powers, rights, and duties. Their organization is wholly different. The powers of the corporation are not vested in the same, or similar hands. In one, the trustees are twelve, and no more. In the other, they are twenty-one. In one, the power is in a single board. In the other, it is divided between two boards. Although the act professes to include the old trustees in the new corporation, yet that was without their a.s.sent, and against their remonstrance; and no person can be compelled to be a member of such a corporation against his will. It was neither expected nor intended that they should be members of the new corporation. The act itself treats the old corporation as at an end, and, going on the ground that all its functions have ceased, it provides for the first meeting and organization of the new corporation. It expressly provides, also, that the new corporation shall have and hold all the property of the old; a provision which would be quite unnecessary upon any other ground, than that the old corporation was dissolved. But if it could be contended that the effect of these acts was not entirely to abolish the old corporation, yet it is manifest that they impair and invade the rights, property, and powers of the trustees under the charter, as a corporation, and the legal rights, privileges, and immunities which belong to them, as individual members of the corporation.

The twelve trustees were the _sole_ legal owners of all the property acquired under the charter. By the acts, others are admitted, against _their_ will, to be joint owners. The twelve individuals who are trustees were possessed of all the franchises and immunities conferred by the charter. By the acts, _nine_ other trustees and _twenty-five_ overseers are admitted, against their will, to divide these franchises and immunities with them.

If, either as a corporation or as individuals, they have any legal rights, this forcible intrusion of others violates those rights, as manifestly as an entire and complete ouster and dispossession. These acts alter the whole const.i.tution of the corporation. They affect the rights of the whole body as a corporation, and the rights of the individuals who compose it. They revoke corporate powers and franchises.

They alienate and transfer the property of the college to others. By the charter, the trustees had a right to fill vacancies in their own number.

This is now taken away. They were to consist of twelve, and, by express provision, of no more. This is altered. They and their successors, appointed by themselves, were for ever to hold the property. The legislature has found successors for them, before their seats are vacant. The powers and privileges which the twelve were to exercise exclusively, are now to be exercised by others. By one of the acts, they are subjected to heavy penalties if they exercise their offices, or any of those powers and privileges granted them by charter, and which they had exercised for fifty years. They are to be punished for not accepting the new grant and taking its benefits. This, it must be confessed, is rather a summary mode of settling a question of const.i.tutional right.

Not only are new trustees forced into the corporation, but new trusts and uses are created. The college is turned into a university. Power is given to create new colleges, and, to authorize any diversion of the funds which may be agreeable to the new boards, sufficient lat.i.tude is given by the undefined power of establishing an inst.i.tute. To these new colleges, and this inst.i.tute, the funds contributed by the founder, Dr.

Wheelock, and by the original donors, the Earl of Dartmouth and others, are to be applied, in plain and manifest disregard of the uses to which they were given.

The president, one of the old trustees, had a right to his office, salary, and emoluments, subject to the twelve trustees alone. His t.i.tle to these is now changed, and he is made accountable to new masters. So also all the professors and tutors. If the legislature can at pleasure make these alterations and changes in the rights and privileges of the plaintiffs, it may, with equal propriety, abolish these rights and privileges altogether. The same power which can do any part of this work can accomplish the whole. And, indeed, the argument on which these acts have been hitherto defended goes altogether on the ground, that this is such a corporation as the legislature may abolish at pleasure; and that its members have no _rights, liberties, franchises, property, or privileges_, which the legislature may not revoke, annul, alienate, or transfer to others, whenever it sees fit.