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measure, in the history of the government, which has accomplished its design with greater simplicity and directness; and that design one of paramount importance to the country, and coming home to the business of every individual.
In all the other public measures brought forward in this Congress for meeting the new conditions of the country, Mr. Webster bore an active part, but they furnish no topic requiring illustration. At the close of the first session, in August, 1816, he executed the project to which we have already alluded of removing to a wider professional field. After some hesitation he decided on Boston, in which and its vicinity he has ever since made his home. He had established friendly relations here at an early period of life. In no part of the Union was his national reputation more cordially recognized than in the metropolis of New England. He took at once the place in his profession which belonged to his commanding talent and legal eminence, and was welcomed into every circle of social life.
Professional Character particularly in Reference to Constitutional Law. — The Dartmonth College Case argned at Washington in 1818. — Mr. Ticknor's Description of that Argument. — The Case of Gibbons and Ogden in 1824. — Mr. Justice Wayne's Allusion to that Case in 1847. — The Case of Ogden and Saunders in 1827. — The Case of the Proprietors of the Charles River Bridge. — The Alabama Bank Case. — The Case relative to the Boundary between Massachusetts arid Rhode Island. — The Girard Will Case. — The Case of the Constitution of Rhode Island. — General Remarks on Mr. Webster's Practice in the Supreme Court of the United States. — Practice in the State Courts. — The Case of Goodridge, — and the Case of Knapp.
With Mr. Webster's removal to Boston commenced a period of five or six years' retirement from active political life, during which time, with a single exception which will be hereafter alluded to, he filled no public office, and devoted himself exclusively to the duties of his profession. It was accordingly within this period that his reputation as a lawyer was fixed and established. The promise of his youth, and the expectations of those who had known him as a student, were more than fulfilled. He took a position as a counsellor and an advocate, above which no one has ever risen in the country. A large share of the best business of New England passed into his hands; and the veterans of the Boston bar admitted him to an entire equality of standing, repute, and influence.
Besides the reputation which he acquired in the ordinary routine of practice, Mr. Webster, shortly after his removal to Boston, took the lead in establishing what might almost be called a new school of constitutional law. It fell to his lot to perform a prominent part in unfolding a most important class of constitutional doctrines, which, either because occasion had not drawn them forth, or the jurists of a former period had failed to deduce and apply them, had not yet grown into a system. It was reserved for Mr. Webster to distinguish himself before most, if not all, of his contemporaries, in this branch of his profession. It may be mentioned as a somewhat curious coincidence, that the case in which he made his first great effort in this direction arose in his native State, and concerned the College in which he had been educated.
In the months of June and December, 1816, the legislature of New Hampshire passed acts altering the charter of Dartmouth College (of which the name was changed to Dartmouth University), enlarging the number of the trustees, and generally reorganizing the corporation. These acts, although passed without the consent and against the protest of the Trustees of the College, went into operation. The newly created body took possession of the corporate property, and assumed the administration of the institution. The old board were all named as members of the new corporation, but declined acting as such, and brought an action against the treasurer of the new board for the books of record, the original charter, the common seal, and other corporate property of the College.
The action was commenced in the Court of Common Pleas for Grafton County, in February, 1817, and carried immediately to the Superior Court, in May of the same year. The general issue was pleaded by the defendants and joined by the plaintiffs. The case turned upon the point, whether the acts of the legislature above referred to were binding upon the corporation without their assent, and not repugnant to the Constitution of the United States. It was first argued by Messrs. Jeremiah Mason and Jeremiah Smith for the plaintiffs, and by the Attorney-General of New Hampshire for the defendants; and subsequently by Messrs. Mason, Smith, and Webster for the plaintiffs, and the Attorney-General and Mr. I. Bartlett for the defendants. At the November term it was decided by the Superior Court of New Hampshire, in an opinion delivered by Chief Justice Richardson, that the acts of the New Hampshire legislature were valid and constitutional. In giving his opinion on the case, the Chief Justice said: "The cause has been argued on both sides with uncommon learning and ability, and we have witnessed a display of talents and eloquence upon this occasion in the highest degree honorable to the profession of the law in this State." *
The case thus decided in the Superior Court of New Hampshire in favor of the validity of the State laws, was carried by writ of error to the Supreme Court of the United States, where, on the 10th of March, 1818, it came on for argument before all the judges, Mr. Webster and Mr. (afterwards Judge) Hopkinson for the plaintiffs, and Mr. J. Holmes of Maine and the Attor
* 1 New Hampshire Reports, p. 113. Vol. i. e
torney-General, Wirt, for the defendants in error. This was perhaps the first occasion in this country on which a question precisely of this kind had come up, and it is stated that, when one of the court had run his eye cursorily over the record, he said that he did not see how any thing important could be urged by the plaintiffs in error.
It devolved upon Mr. Webster, as junior counsel, to open the case, and it is scarcely necessary to say to any one who has read the report of his argument, that, if such an impression as that just alluded to existed in the mind of any of the court, it must have been immediately dispelled. The ground was broadly taken, that the acts in question were not only against common right and the constitution of New Hampshire, but also, and this was the leading principle, against the provision of the Constitution of the United States which forbids the individual States from passing laws that impair the obligation of contracts. Under the first head, the entire English law relative to educational foundations was unfolded by Mr. Webster, and it was shown that colleges, unless otherwise specifically constituted by their charters, were private eleemosynary corporations, over whose property, members, and franchises the crown has no control, except by due process of law, for acts inconsistent with their charters. The whole learning of the subject was brought to bear with overwhelming weight on this point.
The second main point required to be less elaborately argued; namely, that such a charter is a contract which it is not competent for a State to annul. The argument throughout was pursued with a closeness and vigor which have been rarely witnessed in our courts. The topics were beyond the usual range of forensic investigation in this country. The constitutional principles sought to be applied were of commanding importance. Great public expectation was awakened by the novelty and magnitude of the case. The personal connection of Mr. Webster with Dartmouth College as the place of his education gave a fervor to his manner, which added, no doubt, to the effect of the reasoning. On this point Mr. Ticknor expresses himself as follows : —
"Mr. Webster's argument is given in this volume [the first collection of his works], that is, we have there the technical outline; the dry skeleton of it. But those who heard him when it was originally delivered still wonder how such dry bones could ever have lived with the power they there witnessed and felt. He opened his cause, as he always does, with perfect simplicity in the general statement of its facts, and then went on to unfold the topics of his argument in a lucid order, which made each position sustain every other. The logic and the law were rendered irresistible. But as he advanced, his heart warmed to the subject and the occasion. Thoughts and feelings that had grown old with his best affections rose unbidden to his lips. He remembered that the institution he was defending was the one where his own youth had been nurtured; and the moral tenderness and beauty this gave to the grandeur of his thoughts, the sort of religious sensibility it imparted to his urgent appeals and demands for the stern fulfilment of what law and justice required, wrought up the whole audience to an extraordinary state of excitement. Many betrayed strong agitation, many were dissolved in tears. Prominent among them was that eminent lawyer and statesman, Robert Goodloe Harper, who came to him when he resumed his seat, evincing emotions of the highest gratification. When he ceased to speak, there was a perceptible interval before any one was willing to break the silence; and when that vast crowd separated, not one person of the whole number doubted that the man who had that day so moved, astonished, and controlled them, had vindicated for himself a place at the side of the first jurists of the country." *
The opinion of the court, unanimous, with the exception of Justice Duvall, was pronounced by Chief Justice Marshall in the term for 1819, declaring the acts of the legislature of New Hampshire to be unconstitutional and invalid, and reversing the opinion of the court below. By this opinion the law of the land in reference to collegiate charters was firmly established. Henceforward our colleges and universities and their trustees, unless provision to the contrary is made in their acts of incorporation, stand upon the broad basis of common right and justice; holding in like manner as individuals their property and franchises by a firm legal tenure, and not subject to control or interference on the part of the local legislatures on the vague ground that public institutions are at the mercy of the government. That such is the recognized law of the land is owing in no small degree to the ability with which the Dartmouth College case was argued by Mr. Webster. The battle fought and the victory gained in this case were fought and gained for every
* American Review, VoL IX. p. 434.