as the reorganized college was called, and the college, maintained by the old trustees as a separate institution, were rival seats of learning. Daniel Webster, a graduate of the college, had been retained by President Wheelock about a year before the passage of the acts, but was persuaded by personal and political friends to abandon Wheelock. Later he appeared as chief counsel for the trustees. The acts were attacked as being opposed to general principles of government, as contrary to various provisions of the New Hampshire constitution, and as in violation of the federal constitution in that they impaired the obligation of a contract contained in the college charter of 1769. The highest state court, then composed of three judges of exceptional ability, decided against the old trustees on every point,' and the case was taken to the United States supreme court solely on the point pertaining to the federal constitution.2 Senator Henry Cabot Lodge, in his biography of Webster, has summarized so clearly and forcibly the facts relating to the conduct of this case in the supreme court that I shall take the liberty of quoting from his work. Mr. Lodge speaks with authority, for he wrote this biography, as he tells us, only after he had "carefully examined all the literature, contemporary and posthumous, relating to Mr. Webster." Webster, when publishing his supreme court argument in the college case, had admitted that "something was left out." Referring to this, Mr. Lodge says: 3 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. . . . The Mr.Webster was fully aware that he could rely, in any aspect of the case, upon the sympathy of Marshall and Washington (Associate Justice Bushrod 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. 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 skillfully 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 11 N H. III. The report of this case is reprinted, with arguments of counsel, in 65 N. H. 473. 2 4 Wheaton 518. & Life of Webster (in American Statesmen Series), p. 1. 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 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 free-thinkers.1 Of course, the jacobins were the followers of Jefferson, and the freethinkers were Governor Plumer and his supporters, who were then carrying on an unprecedented struggle for the legal equality of all religious denominations in New Hampshire. In the following year they were successful in depriving the Congregational Church of the tax-exemption privilege theretofore accorded to its clergy, and in actually enacting a law that no citizen should be compelled to contribute to any religious society "without his consent first had and obtained." History records that the supporters of these revolutionary measures were termed "infidels, enemies of God and religion." Mr. Lodge, speaking of Webster's address, proceeds: 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 warhorse 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. Mr. Lodge quotes from a description of Webster's peroration by Professor Goodrich, an eye-witness of the scene. Goodrich tells us that Webster, after finishing his legal argument, stood silent a few moments and then went on to speak personally of the college and to predict great disaster for all colleges and for the private rights of individuals if the legislative acts of New Hampshire should be upheld. While speaking in a personal way of his alma mater, he broke down and had to pause to compose himself. In "broken words of tenderness" he then went on to speak of his attachment to the college. Goodrich continues his description thus: The court room 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. This peroration had been used by Webster four months before in the state court, with similar effect upon a sympathetic audience, but not upon the court, although two of the three judges were graduates of Dartmouth. It is not recorded that they were moved to tears. Mr. Lodge comments further on the part Webster played in this forensic contest: 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. did boldly, delicately, successfully, and thus he won his case. This he In confirmation of Mr. Lodge's view of the matter, we may quote the opinion of Mr. Joseph P. Cotton, Jr., the editor of a recent edition of "The Constitutional Decisions of Marshall." In his comment on this case he says: The inference is unavoidable that in that hour he (Webster) argued, and the court listened, outside the record. There can be little question that, by the influence of counsel, by some subtle influence of politics or friendships, there seems to have crept into the consideration of the Dartmouth College case a distinct bias in favor of the college.1 1 The Constitutional Decisions of Marshall, Vol. I, p. 347. Webster devoted most of his legal argument to questions which, as he acknowledged, were not in any way before the court. The only point of which the federal supreme court had jurisdiction was the alleged violation of the federal constitution with reference to impairing the obligation of contracts. To this point Webster devoted six pages of his published argument, as compared with thirty pages given to points on which the last judicial word had been spoken by the state court. Any modern court would have required him to speak only on the question of which the court had jurisdiction. Even in the state court the plaintiffs had had a great advantage in the superior ability and astuteness of their counsel. In addition to Webster's wonderful powers as an advocate and orator, they had the services of Jeremiah Mason and Judge Jeremiah Smith, then leaders of the profession in New England. At Washington the defendant's interests were intrusted to John Holmes, of Maine, a scheming politician, who is said to have been a "noisy eulogist and reputed protégé of Jefferson," representing "in politics, law and statesmanship every thing that the soul of Marshall loathed." 2 His argument occupied about three hours, and seems to have been a compound of legal misapprehension and ranting declamation. William Wirt, Monroe's brilliant attorney-general, was employed to assist Holmes; but the case was not much benefited by his appearance, for he was not in harmony with his associate and was so overburdened with the duties of his office that he made practically no preparation on the case and presented a sorry spectacle in the argument. He was known to be the favorite adviser and confidant of Jefferson. After the case had been argued at Washington, additional counsel was employed, on behalf of the State of New Hampshire, in the person of William Pinkney, of Maryland, then the recognized leader of the bar in the United States. Mr. Pinkney tried to obtain the privilege of rearguing the case, but it was too late; the Chief Justice would give him no opportunity for making the motion. But even with the many advantages, fair and unfair, on the side of the plaintiffs, after the case was submitted to the court, a majority of the seven justices were not ready to say that the obligation of any contract, in the constitutional sense, had been impaired by the amendments to the college charter. On the following day the Chief Justice announced that the court could agree on nothing and the case would be continued for a year, until the next term. Mr. Lodge comments as follows: 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. 1 Timothy Farrar, Report of Darmouth College vs. Woodward (1819). If Mr. Lodge is right, we have here established a novel rule of judicial procedure, namely, that when seven judges, after full argument, stand five to two in favor of one party, if a Chief Justice with an "imperious will" is one of the two, the proper course is to adjourn the case and bring the five "into line.' Mr. Lodge gives us some light on the getting "into line" process. He tells us how the batteries of the Federalist press, of printed pamphlets, letters and essays, which had already been brought into action. for the college under the stress of party influence, were now trained upon the opposing side "with increased eagerness" in order to assist Marshall in his "task." The object, he says, was to "sway the judges without their being aware of it." The printed arguments of the plaintiffs' counsel and other documents "were carefully sent to certain of the judges, but not to all." With Story, whom Mr. Lodge describes as a Democrat by circumstances, a Federalist by nature,' the trustees had "little difficulty"; but "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." Mr. Lodge explains one of the circuitous ways pursued in order to reach these two judges. It lay through Chancellor Kent, "the great legal upholder of Federalism in New York." Justice Livingston was from New York, and had sat on the same state bench with Kent, and Justice Johnson, of South Carolina, was a close friend of the Chancellor. 66 Kent's 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. Mr. Lodge says that "the whole business was managed like a quiet, decorous political campaign." At the present time counsel who should, after the argument of a case, send any document "to certain of the judges, but not to all," or who should submit any paper to the judges without giving it also to opposing counsel, would be courting proceedings for their disbarment; and any judge who could be "reached" by the imperceptible methods described by Mr. Lodge, without "being aware of it," would be considered fit only for the next world. The quotations which have been made from Mr. Lodge with reference to the means used to bring about a decision favorable to the college, are amply supported by known facts and documents, many of which have been industriously collected by Mr. John M. Shirley, who published in 1879 a history of "The Dartmouth College Causes." That Marshall's "imperious will" was a tremendous force in producing judicial results, is well recognized. Sometimes he rendered a decision and entered judgment without taking the trouble to find out whether |