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Title: Select Speeches of Daniel Webster

Author: Daniel Webster

Release Date: February, 2005 [EBook #7600]
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SELECT SPEECHES OF DANIEL WEBSTER

1817-1845

WITH PREFACE, INTRODUCTION, AND NOTES BY

A. J. GEORGE, A.M.

Instructor in Rhetoric and English Literature in the Newton, Mass., High
School


            "The front of Jove himself;
  An eye like Mars to threaten and command;
  A combination and a form indeed,
  Where every god did seem to set his seal,
  To give the world assurance of a man"


Boston, U.S.A.
D.C. Heath & Co., Publishers
1903



TO
THE HON. GEORGE F. HOAR, LL.D.
A WORTHY SUCCESSOR OF
DANIEL WEBSTER
IN THE SENATE OF THE UNITED STATES




Blest Statesman He, whose Mind's unselfish will
Leaves him at ease among grand thoughts: whose eye
Sees that, apart from magnanimity,
Wisdom exists not; nor the humbler skill
Of Prudence, disentangling good and ill
With patient care. What tho' assaults run high,
They daunt not him who holds his ministry,
Resolute, at all hazards, to fulfil
Its duties; prompt to move, but firm to wait;
Knowing, things rashly sought are rarely found;
That, for the functions of an ancient State--
Strong by her charters, free because imbound,
Servant of Providence, not slave of Fate--
Perilous is sweeping change, all chance unsound.




Preface.



Burke and Webster are models in the forensic literature of our own language
as truly as are Demosthenes and Cicero in the language of the ancient
classics. Each has distinct and inimitable characteristics which give force
and beauty to his work. The study of each should be ordered in such a way
as to put one in touch with those qualities of mind and heart, of
intellectual and moral manhood, by which each became a leader in political
philosophy and a model in literary style. One who studies such authors in
order to formulate a historical or a personal estimate merely, or to
compare each as to certain externals of rhetorical form, has lost the true
perspective of literary judgment.

Reading in the school and in the home is far too often pursued with a
purpose to controvert and prove rather than to weigh and consider. Reading
which does not result in enlarging, stimulating, and refining one's nature
is but a busy idleness. The schools must see to it that the desultory and
dissipating methods of reading, so prevalent in the home, are not
encouraged. Pupils must be stimulated first of all to enjoy what is
beautiful in nature and in art: for here is

  "A world of ready wealth,
  Their minds and hearts to bless--
  Spontaneous wisdom breathed by health,
  Truth breathed by cheerfulness."

The wisdom of the classroom is too often "art tongue-tied by authority,"
and hence it is not wisdom at all, but a sham and a pretence. Not until
pupils rise to the spontaneity which betokens a genuine love for the work
in hand do they secure the richest results.

The publication of the masterpieces of the epic, the lyric, and the drama;
of the novel, the essay, and the oration, in a convenient form and at such
a price as to bring them within the reach of our schools, makes it
inexcusable if pupils are allowed to be ignorant of the great literary,
ethical, and artistic impulses which have touched and quickened the life
of the past.

Burke's _American Orations_ present him at his best as a statesman,
an orator, and a stylist. When the edition of those speeches was prepared,
a selection from Webster's great speeches was contemplated as a companion
volume. The present edition represents Webster in the various and distinct
fields in which his genius manifested itself so powerfully and so nobly.
He is here seen before a jury, before the Supreme Court of the United
States, on a great historical occasion, in the Senate of the United
States, in a great national canvass, and as a eulogist.

Had it not been for making the volume too large for school use I should
have included the famous speech delivered in the Senate on the 7th of
March, 1850. This speech has been considered by many as the _vulnus
immedicabile_ of Mr. Webster's political life; it is certain that for
it he was most rankly abused. "Massachusetts," as Hon. John D. Long has
said, "smote and broke the heart of Webster, her idol, and then broke her
own above his grave, and to-day writes his name highest upon her roll of
statesmen."

I find in this speech nothing but what is consistent with Mr. Webster's
noble adherence to the Constitution and the Union; nothing but what is
consistent with the solemn duty of a great man in a great national crisis.

In his address at Buffalo on the 22d of May, 1851, he expressed himself
very freely in regard to this speech, saying: "I felt that I had a duty to
perform to my country, to my own reputation; for I flattered myself that a
service of forty years had given me some character, on which I had a right
to repose for my justification in the performance of a duty attended with
some degree of local unpopularity. I thought it was my duty to pursue this
course, and I did not care what was to be the consequence. And, Gentlemen,
allow me to say here to-day, that if the fate of John Rogers had stared me
in the face, if I had seen the stake, if I had heard the fagots already
crackling, by the blessing of Almighty God I would have gone on and
discharged the duty which I thought my country called upon me to perform."

Does this seem the language of one who had abandoned his post and was
merely "bidding for the Presidency"?

The address of Hon. Rufus Choate, before the students of Dartmouth
College, commemorative of Daniel Webster, has a remark on this subject so
just that I cannot refrain from quoting it. He says: "Until the accuser
who charges Mr. Webster with having 'sinned against his conscience' will
assert that the conscience of a public man may not, must not, be
instructed by profound knowledge of the vast subject-matter with which
public life is conversant, and will assert that he is certain that the
consummate science of our great statesman was _felt by himself to
prescribe to his morality_ another conduct than that which he adopted,
and that he thus consciously outraged that 'sense of duty which pursues us
ever,'--is he not inexcusable, whoever he is, that so judges another?"

At the meeting held in Faneuil Hall, Oct. 27, 1852, commemorative of Mr.
Webster's life and work, Mr. Edward Everett said: "Whoever, in after time,
shall write the history of the United States for the last forty years will
write the life of Daniel Webster; and whoever writes the life of Daniel
Webster as it ought to be written will write the history of the Union from
the time he took a leading part in its concerns." Mr. Choate, at a meeting
of the Supreme Court of Massachusetts, Oct. 25, 1852, said: "Happier than
the younger Pliny, happier than Cicero, he has found his historian,
unsolicited, in his lifetime, and his countrymen have him all by heart."

If this volume shall aid in bringing the young of this generation "to have
him all by heart," to ascend his imaginative heights and sit under the
shadow of his profound reflections on that which is fundamental in civil
and religious liberty, its purpose will be accomplished.

With few exceptions these selections are given entire. Whenever they have
been abridged, the continuity of the discourse has not been impaired.

In the matter of annotation the purpose has been to furnish sufficient aid
to the general reader, and at the same time to indicate to the special
student lines along which he may study the speeches.

In Edward Everett's Memoir, found in the first volume of Mr. Webster's
works; in the life of Mr. Webster by George Tichnor Curtis, and in Henry
Cabot Lodge's _Daniel Webster_, in the American Statesman Series, the
student has exhaustive, scholarly, and judicious estimates of Mr.
Webster's work.

I am indebted to the Hon. George F. Hoar and the Hon. Edward J. Phelps for
assistance in the task of selecting representative speeches; and to the
former for permission to associate his name with this edition of Mr.
Webster's work.

A. J. G.

Brookline, November, 1892.




Introduction.



Mr. Webster approaches as nearly to the _beau ideal_ of a republican
Senator as any man that I have ever seen in the course of my life; worthy
of Rome or Venice rather than of our noisy and wrangling generation.--
Hallam.

Coleridge used to say that he had seldom known or heard of any great man
who had not much of the woman in him. Even so the large intellect of
Daniel Webster seemed to be coupled with all softer feelings; and his
countenance and bearing, at the very first, impressed me with this. A
commanding brow, thoughtful eyes, and a mouth that seemed to respond to
all humanities. He deserves his fame, I am sure.--John Kenyon.

He is a magnificent specimen. You might say to all the world, "This is our
Yankee Englishman; such limbs we make in Yankee-land!" As a parliamentary
Hercules one would incline to back him at first sight against all the
extant world. The tanned complexion; that amorphous craglike face; the
dull black eyes under the precipice of brows, like dull anthracite
furnaces needing only to be _blown_; the mastiff mouth, accurately
closed; I have not traced so much of _silent Berserkir rage_ that I
remember of in any other man.--Thomas Carlyle.

When the historian shall look back upon the first century of the American
Republic, the two names that will shine with most unfading lustre and the
serenest glory, high above all others, are Washington and Webster.--
Professor Felton.

Consider the remarkable phenomenon of excellence in three unkindred, one
might have thought incompatible, forms of public speech,--that of the
forum, with its double audience of bench and jury, of the halls of
legislation, and of the most thronged and tumultuous assemblies of the
people. Consider, further, that this multiform eloquence, exactly as his
words fell, became at once so much accession to permanent literature in
the strictest sense,--solid, attractive, rich,--and ask how often in the
history of public life such a thing has been exemplified.--Rufus Choate.

The noblest monument to Daniel Webster is in his works. As a repository of
political truth and practical wisdom, applied to the affairs of
government, I know not where we shall find their equal. The works of Burke
naturally suggest themselves to the mind, as the only writings in our
language that can sustain the comparison.--Edward Everett.

He writes like a man who is thinking of his subject, and not of his style,
and thus he wastes no time upon the mere garb of his thoughts. His style
is Doric, not Corinthian. His sentences are like shafts hewn from the
granite of his own hills,--simple, massive, strong. We may apply to him
what Quinctilian says of Cicero, that a relish for his writings is itself
a mark of good taste.--George S. Hillard.

He taught the people of the United States, in the simplicity of common
understanding, the principles of the Constitution and government of the
country, and he wrought for them, in a style of matchless strength and
beauty, the literature of statesmanship. He made his language the very
household words of a nation. They are the library of the people. They are
the school-book of the citizen.--John D. Long.

Take him for all in all, he was not only the greatest orator this country
has ever known, but in the history of eloquence his name will stand with
those of Demosthenes and Cicero, Chatham and Burke.--Henry Cabot Lodge.

It may be said that the style of Webster is pre-eminently distinguished by
manliness. The intellect and moral manliness of Webster underlies all his
great orations and speeches; and this plain force of manhood, this sturdy
grapple with every question that comes before his understanding for
settlement, leads him 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.--Edwin P.
Whipple.

His broad, wise statesmanship is to be the ample and refreshing shade, his
character the bright and breezy presence, in which all the members of this
great and illustrious Republic may meet and sit down and feast together.--
H. N. Hudson.




Contents.



Defence of the Kennistons
The Dartmouth College Case
First Settlement of New England
The Bunker Hill Monument
The Reply to Hayne
The Murder of Captain Joseph White
The Constitution Not a Compact Between Sovereign States
Speech at Saratoga
Eulogy on Mr. Justice Story
Biographical
Notes




Defence of the Kennistons.



Gentlemen of the Jury,--It is true that the offence charged in the
indictment in this case is not capital; but perhaps this can hardly be
considered as favorable to the defendants. To those who are guilty, and
without hope of escape, no doubt the lightness of the penalty of
transgression gives consolation. But if the defendants are innocent, it is
more natural for them to be thinking upon what they have lost by that
alteration of the law which has left highway robbery no longer capital,
than upon what the guilty might gain by it. They have lost those great
privileges in their trial, which the law allows, in capital cases, for the
protection of innocence against unfounded accusation. They have lost the
right of being previously furnished with a copy of the indictment, and a
list of the government witnesses. They have lost the right of peremptory
challenge; and, notwithstanding the prejudices which they know have been
excited against them, they must show legal cause of challenge, in each
individual case, or else take the jury as they find it. They have lost the
benefit of assignment of counsel by the court. They have lost the benefit
of the Commonwealth's process to bring in witnesses in their behalf. When
to these circumstances it is added that they are strangers, almost wholly
without friends, and without the means for preparing their defence, it is
evident they must take their trial under great disadvantages.

But without dwelling on these considerations, I proceed, Gentlemen of the
Jury, to ask your attention to those circumstances which cannot but cast
doubts on the story of the prosecutor.

In the first place, it is impossible to believe that a robbery of this
sort could have been committed by three or four men without previous
arrangement and concert, and of course without the knowledge of the fact
that Goodridge would be there, and that he had money. They did not go on
the highway, in such a place, in a cold December's night, for the general
purpose of attacking the first passenger, running the chance of his being
somebody who had money. It is not easy to believe that a gang of robbers
existed, that they acted systematically, communicating intelligence to one
another, and meeting and dispersing as occasion required, and that this
gang had their head-quarters in such a place as Newburyport. No town is
more distinguished for the general correctness of the habits of its
citizens; and it is of such a size that every man in it may be known to
all the rest. The pursuits, occupations, and habits of every person within
it are within the observation of his neighbors. A suspicious stranger
would be instantly observed, and all his movements could be easily traced.
This is not the place to be the general rendezvous of a gang of robbers.
Offenders of this sort hang on the skirts of large towns. From the
commission of their crimes they hasten into the crowd, and hide themselves
in the populousness of great cities. If it be wholly improbable that a
gang existed in such a place for the purpose of general plunder, the next
inquiry is, Is there any reason to think that there was a special or
particular combination, for the single purpose of robbing the prosecutor?
Now it is material to observe, that not only is there no evidence of any
such combination, but also, that circumstances existed which render it
next to impossible that the defendants could have been parties to such a
combination, or even that they could have any knowledge of the existence
of any such man as Goodridge, or that any person, with money, was expected
to come from the eastward, and to be near Essex Bridge, at or about nine
o'clock, the evening when the robbery is said to have been committed.

One of the defendants had been for some weeks in Newburyport, the other
passed the bridge from New Hampshire at twelve o'clock on the 19th of
December, 1816. At this time, Goodridge had not yet arrived at Exeter,
twelve or fourteen miles from the bridge. How, then, could either of the
defendants know that he was coming? Besides, he says that nobody, as far
as he is aware, knew on the road that he had money, and nothing happened
till he reached Exeter, according to his account, from which it might be
conjectured that such was the case. Here, as he relates it, it became
known that he had pistols; and he must wish you to infer that the plan to
rob him was laid here, at Exeter, by some of the persons who inferred that
he had money from his being armed. Who were these persons? Certainly not
the defendants, or either of them. Certainly not Taber. Certainly not
Jackman. Were they persons of suspicious characters? Was he in a house of
a suspicious character? On this point he gives us no information. He has
either not taken the pains to inquire, or he chooses not to communicate
the result of his inquiries. Yet nothing could be more important, since he
seems compelled to lay the scene of the plot against him at Exeter, than
to know who the persons were that he saw, or who saw him, at that place.
On the face of the facts now proved, nothing could be more improbable than
that the plan of robbery was concerted at Exeter. If so, why should those
who concerted it send forward to Newburyport to engage the defendants,
especially as they did not know that they were there? What should induce
any persons so suddenly to apply to the defendants to assist in a robbery?
There was nothing in their personal character or previous history that
should induce this.

Nor was there time for all this. If the prosecutor had not lingered on the
road, for reasons not yet discovered, he must have been in Newburyport
long before the time at which he states the robbery to have been
committed. How, then, could any one expect to leave Exeter, come to
Newburyport, fifteen miles, there look out for and find out assistants for
a highway robbery, and get back two miles to a convenient place for the
commission of the crime? That any body should have undertaken to act thus
is wholly improbable; and, in point of fact, there is not the least proof
of any body's travelling, that afternoon, from Exeter to Newburyport, or
of any person who was at the tavern at Exeter having left it that
afternoon. In all probability, nothing of this sort could have taken place
without being capable of detection and proof. In every particular, the
prosecutor has wholly failed to show the least probability of a plan to
rob him having been laid at Exeter.

But how comes it that Goodridge was near or quite four hours and a half in
travelling a distance which might have been travelled in two hours or two
hours and a half. He says he missed his way, and went the Salisbury road.
But some of the jury know that this could not have delayed him more than
five or ten minutes. He ought to be able to give some better account of
this delay.

Failing, as he seems to do, to create any belief that a plan to rob him
was arranged at Exeter, the prosecutor goes back to Alfred, and says he
saw there a man whom Taber resembles. But Taber is proved to have been at
that time, and at the time of the robbery, in Boston. This is proved
beyond question. It is so certain, that the Solicitor-General has _nol
prossed_ the indictment against him.

There is an end, then, of all pretence of the adoption of a scheme of
robbery at Alfred. This leaves the prosecutor altogether unable to point
out any manner in which it should become known that he had money, or in
which a design to rob him should originate.

It is next to be considered whether the prosecutor's story is either
natural or consistent. But, on the threshold of the inquiry, every one
puts the question, What motive had the prosecutor to be guilty of the
abominable conduct of feigning a robbery? It is difficult to assign
motives. The jury do not know enough of his character or circumstances.
Such things have happened, and may happen again. Suppose he owed money in
Boston, and had it not to pay? Who knows how high he might estimate the
value of a plausible apology? Some men have also a whimsical ambition of
distinction. There is no end to the variety of modes in which human vanity
exhibits itself. A story of this nature excites the public sympathy. It
attracts general attention. It causes the name of the prosecutor to be
celebrated as a man who has been attacked, and, after a manly resistance,
overcome by robbers, and who has renewed his resistance as soon as
returning life and sensation enabled him, and, after a second conflict,
has been quite subdued, beaten and bruised out of all sense and sensation,
and finally left for dead on the field. It is not easy to say how far such
motives, trifling and ridiculous as most men would think them, might
influence the prosecutor, when connected with any expectation of favor or
indulgence, if he wanted such, from his creditors. It is to be remembered
that he probably did not see all the consequences of his conduct, if his
robbery be a pretence. He might not intend to prosecute any body. But he
probably found, and indeed there is evidence to show, that it was
necessary for him to do something to find out the authors of the alleged
robbery. He manifested no particular zeal on this subject. He was in no
haste. He appears rather to have been pressed by others to do that which,
if he had really been robbed, we should suppose he would have been most
earnest to do, the earliest moment.

But could he so seriously wound himself? Could he or would he shoot a
pistol-bullet through his hand, in order to render the robbery probable,
and to obtain belief in his story? All exhibitions are subject to
accidents. Whether they are serious or farcical, they may, in some
particulars, not proceed exactly as they are designed to do. If we knew
that this shot through the hand, if made by himself, must have been
intentionally made by himself, it would be a circumstance of greater
weight. The bullet went through the sleeve of his coat. He might have
intended it should go through nothing else. It is quite certain he did not
receive the wound in the way he described. He says he was pulling or
thrusting aside the robber's pistol, and while his hand was on it, it was
fired, and the contents passed through his hand. This could not have been
so, because no part of the contents went through the hand, except the
ball. There was powder on the sleeve of his coat, and from the appearance
one would think the pistol to have been three or four feet from the hand
when fired. The fact of the pistol-bullet being fired through the hand, is
doubtless a circumstance of importance. It may not be easy to account for
it; but it is to be weighed with other circumstances.

It is most extraordinary, that, in the whole case, the prosecutor should
prove hardly any fact in any way but by his own oath. He chooses to trust
every thing on his own credit with the jury. Had he the money with him
which he mentions? If so, his clerks or persons connected with him in
business must have known it; yet no witness is produced. Nothing can be
more important than to prove that he had the money. Yet he does not prove
it. Why should he leave this essential fact without further support? He is
not surprised with this defence, he knew what it would be. He knew that
nothing could be more important than to prove that, in truth, he did
possess the money which he says he lost; yet he does not prove it. All
that he saw, and all that he did, and everything that occurred to him
until the alleged robbery, rests solely on his own credit. He does not see
fit to corroborate any fact by the testimony of any witness. So he went to
New York to arrest Jackman. He did arrest him. He swears positively that
he found in his possession papers which he lost at the time of the
robbery; yet he neither produces the papers themselves, nor the persons
who assisted in the search.

In like manner, he represents his intercourse with Taber at Boston. Taber,
he says, made certain confessions. They made a bargain for a disclosure or
confession on one side, and a reward on the other. But no one heard these
confessions except Goodridge himself. Taber now confronts him, and
pronounces this part of his story to be wholly false; and there is nobody
who can support the prosecutor.

A jury cannot too seriously reflect on this part of the case. There are
many most important allegations of fact, which, if true, could easily be
shown by other witnesses, and yet are not so shown.

How came Mr. Goodridge to set out from Bangor, armed in this formal and
formidable manner? How came he to be so apprehensive of a robbery? The
reason he gives is completely ridiculous. As the foundation of his alarm,
he tells a story of a robbery which he had heard of, but which, as far as
appears, no one else ever heard of; and the story itself is so perfectly
absurd, it is difficult to resist the belief that it was the product of
his imagination at the moment. He seems to have been a little too
confident that an attempt would be made to rob him. The manner in which he
carried his money, as he says, indicated a strong expectation of this
sort. His gold he wrapped in a cambric cloth, put it into a shot bag, and
then into a portmanteau. One parcel of bills, of a hundred dollars in
amount, he put into his pocket-book; another, of somewhat more than a
thousand dollars, he carried next his person, underneath all his clothes.
Having disposed of his money in this way, and armed himself with two good
pistols, he set out from Bangor. The jury will judge whether this
extraordinary care of his money, and this formal arming of himself to
defend it, are not circumstances of a very suspicious character.

He stated that he did not travel in the night; that he would not so much
expose himself to robbers. He said that, when he came near Alfred, he did
not go into the village, but stopped a few miles short, because night was
coming on, and he would not trust himself and his money out at night. He
represents himself to have observed this rule constantly and invariably
until he got to Exeter. Yet, when the time came for the robbery, he was
found out at night. He left Exeter about sunset, intending to go to
Newburyport, fifteen miles distant, that evening. When he is asked how
this should happen, he says he had no fear of robbers after he left the
District of Maine. He thought himself quite safe when he arrived at
Exeter. Yet he told the jury, that at Exeter he thought it necessary to
load his pistol afresh. He asked for a private room at the inn. He told
the persons in attendance that he wished such a room for the purpose of
changing his clothes. He charged them not to suffer him to be interrupted.
But he now testifies that his object was not to change his dress, but to
put new loading into his pistols. What sort of a story is this?

He says he now felt himself out of all danger from robbers, and was
therefore willing to travel at night. At the same time, he thought himself
in very great danger from robbers, and therefore took the utmost pains to
keep his pistols well loaded and in good order. To account for the pains
he took about loading his pistols at Exeter, he says it was his invariable
practice, every day after he left Bangor, to discharge and load again one
or both of his pistols; that he never missed doing this; that he avoided
doing it at the inns, lest he should create suspicion, but that he did it,
while alone, on the road, every day.

How far this is probable the jury will judge. It will be observed that he
gave up his habits of caution as he approached the place of the robbery.
He then loaded his pistols at the tavern, where persons might and did see
him; and he then also travelled in the night. He passed the bridge over
Merrimack River a few minutes before nine o'clock. He was now at a part of
his progress where he was within the observation of other witnesses, and
something could be known of him besides what he told of himself.
Immediately after him passed the two persons with their wagons, Shaw and
Keyser. Close upon them followed the mail-coach. Now, these wagons and the
mail must have passed within three rods, at most, of Goodridge, at the
very time of the robbery. They must have been very near the spot, the very
moment of the attack; and if he was under the robbers' hands as long as he
represents, or if they staid on the spot long enough to do half what he
says they did, they must have been there when the wagons and the stage
passed. At any rate, it is next to impossible, by any computation of time,
to put these carriages so far from the spot, that the drivers should not
have heard the cry of murder, which he says he raised, or the report of
the two pistols, which he says were discharged. In three quarters of an
hour, or an hour, he returned, and repassed the bridge.

The jury will next naturally look to the appearances exhibited on the
field after the robbery. The portmanteau was there. The witnesses say,
that the straps which fastened it to the saddle had been neither cut nor
broken. They were carefully unbuckled. This was very considerate for
robbers. It had been opened, and its contents were scattered about the
field. The pocket-book, too, had been opened, and many papers it contained
found on the ground. Nothing valuable was lost but money. The robbers did
not think it well to go off at once with the portmanteau and the pocket-
book. The place was so secure, so remote, so unfrequented; they were so
far from the highway, at least one full rod; there were so few persons
passing, probably not more than four or five then in the road, within
hearing of the pistols and the cries of Goodridge; there being, too, not
above five or six dwelling-houses, full of people, within the hearing of
the report of a pistol; these circumstances were all so favorable to their
safety, that the robbers sat down to look over the prosecutor's papers,
carefully examined the contents of his pocket-book and portmanteau, and
took only the things which they needed! There was money belonging to other
persons. The robbers did not take it. They found out it was not the
prosecutor's, and left it. It may be said to be favorable to the
prosecutor's story, that the money which did not belong to him, and the
plunder of which would seem to be the most probable inducement he could
have to feign a robbery, was not taken. But the jury will consider whether
this circumstance does not bear quite as strongly the other way, and
whether they can believe that robbers could have left this money, either
from accident or design.

The robbers, by Goodridge's account, were extremely careful to search his
person. Having found money in his portmanteau and in his pocket-book, they
still forthwith stripped him to the skin, and searched until they found
the sum which had been so carefully deposited under his clothes. Was it
likely, that, having found money in the places where it is ordinarily
carried, robbers should proceed to search for more, where they had no
reason to suppose more would be found? Goodridge says that no person knew
of his having put his bank-notes in that situation. On the first attack,
however, they proceeded to open one garment after another, until they
penetrated to the treasure, which was beneath them all.

The testimony of Mr. Howard is material. He examined Goodridge's pistol,
which was found on the spot, and thinks it had not been fired at all. If
this be so, it would follow that the wound through the hand was not made
by this pistol; but then, as the pistol is now discharged, if it had not
been fired, he is not correct in swearing that he fired it at the robbers,
nor could it have been loaded at Exeter, as he testified.

In the whole case, there is nothing, perhaps, more deserving
consideration, than the prosecutor's statement of the violence which the
robbers used towards him. He says he was struck with a heavy club, on the
back part of his head. He fell senseless to the ground. Three or four
rough-handed villains then dragged him to the fence, and through it or
over it, with such force as to break one of the boards. They then
plundered his money. Presently he came to his senses; perceived his
situation; saw one of the robbers sitting or standing near; he valiantly
sprung upon, and would have overcome him, but the ruffian called out for
his comrades, who returned, and all together they renewed their attack
upon, subdued him, and redoubled their violence. They struck him heavy
blows; they threw him violently to the ground; they kicked him in the
side; they choked him; one of them, to use his own words, jumped upon his
breast. They left him only when they supposed they had killed him. He went
back to Pearson's, at the bridge, in a state of delirium, and it was
several hours before his recollection came to him. This is his account.
Now, in point of fact, it is certain that on no part of his person was
there the least mark of this beating and wounding. The blow on the head,
which brought him senseless to the ground, neither broke the skin, nor
caused any tumor, nor left any mark whatever. He fell from his horse on
the frozen ground, without any appearance of injury. He was drawn through
or over the fence with such force as to break the rail, but not so as to
leave any wound or scratch on him. A second time he is knocked down,
kicked, stamped upon, choked, and in every way abused and beaten till
sense had departed, and the breath of life hardly remained; and yet no
wound, bruise, discoloration, or mark of injury was found to result from
all this. Except the wound in his hand, and a few slight punctures in his
left arm, apparently made with his own penknife, which was found open on
the spot, there was no wound or mark which the surgeons, upon repeated
examinations, could anywhere discover. This is a story not to be believed.
No matter who tells it, it is so impossible to be true, that all belief is
set at defiance. No man can believe it. All this tale of blows which left
no marks, and of wounds which could not be discovered, must be the work of
imagination. If the jury can believe that he was robbed, it is impossible
they can believe his account of the manner of it.

With respect, next, to delirium. The jury have heard the physicians. Two
of them have no doubt it was all feigned. Dr. Spofford spoke in a more
guarded manner, but it was very evident his opinion agreed with theirs. In
the height of his raving, the physician who was present said to others,
that he could find nothing the matter with the man, and that his pulse was
perfectly regular. But consider the facts which Dr. Balch testifies. He
suspected the whole of this illness and delirium to be feigned. He wished
to ascertain the truth. While he or others were present, Goodridge
appeared to be in the greatest pains and agony from his wounds. He could
not turn himself in bed, nor be turned by others, without infinite
distress. His mind, too, was as much disordered as his body. He was
constantly raving about robbery and murder. At length the physicians and
others withdrew, and left him alone in the room. Dr. Balch returned softly
to the door, which he had left partly open, and there he had a full view
of his patient, unobserved by him. Goodridge was then very quiet. His
incoherent exclamations had ceased. Dr. Balch saw him turn over without
inconvenience. Pretty soon he sat up in bed, and adjusted his neckcloth
and his hair. Then, hearing footsteps on the staircase, he instantly sunk
into the bed again; his pains all returned, and he cried out against
robbers and murderers as loud as ever. Now, these facts are all sworn to
by an intelligent witness, who cannot be mistaken in them; a respectable
physician, whose veracity or accuracy is in no way impeached or
questioned. After this, it is difficult to retain any good opinion of the
prosecutor. Robbed or not robbed, this was his conduct; and such conduct
necessarily takes away all claim to sympathy and respect. The jury will
consider whether it does not also take away all right to be believed in
anything. For if they should be of opinion that in any one point he has
intentionally misrepresented facts, he can be believed in nothing. No man
is to be convicted on the testimony of a witness whom the jury has found
wilfully violating the truth in any particular.

The next part of the case is the conduct of the prosecutor in attempting
to find out the robbers, after he had recovered from his illness. He
suspected Mr. Pearson, a very honest, respectable man, who keeps the
tavern at the bridge. He searched his house and premises. He sent for a
conjuror to come, with his metallic rods and witch-hazel, to find the
stolen money. Goodridge says now, that he thought he should find it, if
the conjuror's instruments were properly prepared. He professes to have
full faith in the art. Was this folly, or fraud, or a strange mixture of
both? Pretty soon after the last search, gold pieces were actually found
near Mr. pearson's house, in the manner stated by the female witness. How
came they there? Did the robber deposit them there? That is not possible.
Did he accidentally leave them there? Why should not a robber take as good
care of his money as others? It is certain, too, that the gold pieces were
not put there at the time of the robbery, because the ground was then
bare; but when these pieces were found, there were several inches of snow
below them. When Goodridge searched here with his conjuror, he was on this
spot, alone and unobserved, as he thought. Whether he did not, at that
time, drop his gold into the snow, the jury will judge. When he came to
this search, he proposed something very ridiculous. He proposed that all
persons about to assist in the search should be examined, to see that they
had nothing which they could put into Pearson's possession, for the
purpose of being found there. But how was this examination to be made?
Why, truly, Goodridge proposed that every man should examine himself, and
that, among others, he would examine himself, till he was satisfied he had
nothing in his pockets which he could leave at pearson's, with the
fraudulent design of being afterwards found there, as evidence against
pearson. What construction would be given to such conduct?

As to Jackman, Goodridge went to New York and arrested him. In his room he
says he found paper coverings of gold, with his own figures on them, and
pieces of an old and useless receipt, which he can identify, and which he
had in his possession at the time of the robbery. He found these things
lying on the floor in Jackman's room. What should induce the robbers, when
they left all other papers, to take this receipt? And what should induce
Jackman to carry it to New York, and keep it, with the coverings of the
gold, in a situation where it was likely to be found, and used as evidence
against him?

There is no end to the series of improbabilities growing out of the
prosecutor's story.

One thing especially deserves notice. Wherever Goodridge searches, he
always finds something; and what he finds, he always can identify and
swear to, as being his. The thing found has always some marks by which he
knows it. Yet he never finds much. He never finds the mass of his lost
treasure. He finds just enough to be evidence, and no more.

These are the circumstances which tend to raise doubts of the truth of the
prosecutor's relation. It is for the jury to say, whether it would be safe
to convict any man for this robbery until these doubts shall be cleared
up. No doubt they are to judge him candidly; but they are not to make
every thing yield to a regard to his reputation, or a desire to vindicate
him from the suspicion of a fraudulent prosecution.

He stands like other witnesses, except that he is a very interested
witness; and he must hope for credit, if at all, from the consistency and
general probability of the facts to which he testifies. The jury will not
convict the prisoners to save the prosecutor from disgrace. He has had
every opportunity of making out his case. If any person in the State could
have corroborated any part of his story, that person he could have
produced. He has had the benefit of full time, and good counsel, and of
the Commonwealth's process, to bring in his witnesses. More than all, he
has had an opportunity of telling his own story, with the simplicity that
belongs to truth, if it were true, and the frankness and earnestness of an
honest man, if he be such. It is for the jury to say, under their oaths,
how he has acquitted himself in these particulars, and whether he has left
their minds free from doubt as to the truth of his narration.

But if Goodridge were really robbed, is there satisfactory evidence that
the defendants had a hand in the commission of this offence? The evidence
relied on is the finding of the money in their house. It appears that
these defendants lived together, and, with a sister, constituted one
family. Their father lived in another part of the same house, and with his
wife constituted another and distinct family. In this house, some six
weeks after the robbery, the prosecutor made a search; and the result has
been stated by the witnesses. Now, if the money had been passed or used by
the defendants it might have been conclusive. If found about their
persons, it might have been very strong proof. But, under the
circumstances of this case, the mere finding of money in their house, and
that only in places where the prosecutor had previously been, is no
evidence at all. With respect to the gold pieces, it is certainly true
that they were found in Goodridge's track. They were found only where he
had been, and might have put them.

When the sheriff was in the house and Goodridge in the cellar, gold was
found in the cellar. When the sheriff was up stairs and Goodridge in the
rooms below, the sheriff was called down to look for money where Goodridge
directed, and there money was found. As to the bank-note, the evidence is
not quite so clear. Mr. Leavitt says he found a note in a drawer in a room
in which none of the party had before been; that he thought it an
uncurrent or counterfeit note, and not a part of Goodridge's money, and
left it where he found it, without further notice. An hour or two
afterward, Upton perceived a note in the same drawer, Goodridge being then
with or near him, and called to Leavitt. Leavitt told him that he had
discovered that note before, but that it could not be Goodridge's. It was
then examined. Leavitt says he looked at it, and saw writing on the back
of it. Upton says he looked at it, and saw writing on the back of it. He
says also that it was shown to Goodridge, who examined it in the same way
that he and Leavitt examined it. None of the party at this time suspected
it to be Goodridge's. It was then put into Leavitt's pocket-book, where it
remained till evening, when it was taken out at the tavern; and then it
turns out to be, plainly and clearly, one of Goodridge's notes, and has
the name of "James Poor, Bangor," in Goodridge's own handwriting, on the
back of it. The first thing that strikes one in this account is, Why was
not this discovery made at the time? Goodridge was looking for notes, as
well as gold. He was looking for Boston notes, for such he had lost. He
was looking for ten-dollar notes, for such he had lost. He was looking for
notes which he could recognize and identify. He would, therefore,
naturally be particularly attentive to any writing or marks upon such as
he might find. Under these circumstances, a note is found in the house of
the supposed robbers. It is a Boston note, it is a ten-dollar note, it has
writing on the back of it; that writing is the name of his town and the
name of one of his neighbors; more than all, that writing is his own
handwriting! Notwithstanding all this, neither Goodridge, nor Upton, nor
the sheriff, examined it so as to see whether it was Goodridge's money.
Notwithstanding it so fully resembled, in all points, the money they were
looking for, and notwithstanding they also saw writing on the back of it,
which, they must know, if they read it, would probably have shown where it
came from, neither of them did so far examine it as to see any proof of
its being Goodridge's.

This is hardly to be believed. It must be a pretty strong faith in the
prosecutor that could credit this story. In every part of it, it is
improbable and absurd. It is much more easy to believe that the note was
changed. There might have been, and there probably was, an uncurrent or
counterfeit note found in the drawer by Leavitt. He certainly did not at
the time think it to be Goodridge's, and he left it in the drawer where he
found it. Before he saw it again, the prosecutor had been in that room,
and was in or near it when the sheriff was again called in, and asked to
put that bill in his pocket-book. How do the jury know that this was the
same note which Leavitt had before seen? Or suppose it was. Leavitt
carried it to Coffin's; in the evening he produced it, and, after having
been handed about for some time among the company, it turns out to be
Goodridge's note, and to have upon it infallible marks of identity. How do
the jury know that a sleight of hand had not changed the note at Coffin's?
It is sufficient to say, the note might have been changed. It is not
certain that this is the note which Leavitt first found in the drawer, and
this not being certain, it is not proof against the defendants.

Is it not extremely improbable, if the defendants are guilty, that they
should deposit the money in the places where it was found? Why should they
put it in small parcels in so many places, for no end but to multiply the
chances of detection? Why, especially, should they put a doubloon in their
father's pocket-book? There is no evidence, nor any ground of suspicion,
that the father knew of the money being in his pocket-book. He swears he
did not know it. His general character is unimpeached, and there is
nothing against his credit. The inquiry at Stratham was calculated to
elicit the truth; and, after all, there is not the slightest reason to
suspect that he knew that the doubloon was in his pocket-book. What could
possibly induce the defendants to place it there? No man can conjecture a
reason. On the other hand, if this is a fraudulent proceeding on the part
of the prosecutor, this circumstance could be explained. He did not know
that the pocket-book, and the garment in which it was found, did not
belong to one of the defendants. He was as likely, therefore, to place it
there as elsewhere. It is very material to consider that nothing was found
in that part of the house which belonged to the defendants. Every thing
was discovered in the father's apartments. They were not found, therefore,
in the possession of the defendants, any more than if they had been
discovered in any other house in the neighborhood. The two tenements, it
is true, were under the same roof; but they were not on that account the
same tenements. They were as distinct as any other houses. Now, how should
it happen that the several parcels of money should all be found in the
father's possession? He is not suspected, certainly there is no reason to
suspect him, of having had any hand either in the commission of the
robbery or the concealing of the goods. He swears he had no knowledge of
any part of this money being in his house. It is not easy to imagine how
it came there, unless it be supposed to have been put there by some one
who did not know what part of the house belonged to the defendants and
what part did not.

The witnesses on the part of the prosecution have testified that the
defendants, when arrested, manifested great agitation and alarm; paleness
overspread their faces, and drops of sweat stood on their temples. This
satisfied the witnesses of the defendants' guilt, and they now state the
circumstances as being indubitable proof. This argument manifests, in
those who use it, an equal want of sense and sensibility. It is precisely
fitted to the feeling and the intellect of a bum-bailiff. In a court of
justice it deserves nothing but contempt. Is there nothing that can
agitate the frame or excite the blood but the consciousness of guilt? If
the defendants were innocent, would they not feel indignation at this
unjust accusation? If they saw an attempt to produce false evidence
against them, would they not be angry? And, seeing the production of such
evidence, might they not feel fear and alarm? And have indignation, and
anger, and terror, no power to affect the human countenance or the human
frame?

Miserable, miserable, indeed, is the reasoning which would infer any man's
guilt from his agitation when he found himself accused of a heinous
offence; when he saw evidence which he might know to be false and
fraudulent brought against him; when his house was filled, from the garret
to the cellar, by those whom he might esteem as false witnesses; and when
he himself, instead of being at liberty to observe their conduct and watch
their motions, was a prisoner in close custody in his own house, with the
fists of a catch-poll clenched upon his throat.

The defendants were at Newburyport the afternoon and evening of the
robbery. For the greater part of the time they show where they were, and
what they were doing. Their proof, it is true, does not apply to every
moment. But when it is considered that, from the moment of their arrest,
they have been in close prison, perhaps they have shown as much as could
be expected. Few men, when called on afterwards, can remember, and fewer
still can prove, how they have passed every half-hour of an evening. At a
reasonable hour they both came to the house where Laban had lodged the
night before. Nothing suspicious was observed in their manner or
conversation. Is it probable they would thus come unconcernedly into the
company of others, from a field of robbery, and, as they must have
supposed, of murder, before they could have ascertained whether the stain
of blood was not on their garments? They remained in the place a part of
the next day. The town was alarmed; a strict inquiry was made of all
strangers, and of the defendants among others. Nothing suspicious was
discovered. They avoided no inquiry, nor did they leave the town in any
haste. The jury has had an opportunity of seeing the defendants. Does
their general appearance indicate that hardihood which would enable them
to act this cool, unconcerned part? Is it not more likely they would have
fled?

From the time of the robbery to the arrest, five or six weeks, the
defendants were engaged in their usual occupations. They are not found to
have passed a dollar of money to any body. They continued their ordinary
habits of labor. No man saw money about them, nor any circumstance that
might lead to a suspicion that they had money. Nothing occurred tending in
any degree to excite suspicion against them. When arrested, and when all
this array of evidence was brought against them, and when they could hope
in nothing but their innocence, immunity was offered them again if they
would confess. They were pressed, and urged, and allured, by every motive
which could be set before them, to acknowledge their participation in the
offence, and to bring out their accomplices. They steadily protested that
they could confess nothing because they knew nothing. In defiance of all
the discoveries made in their house, they have trusted to their innocence.
On that, and on the candor and discernment of an enlightened jury, they
still rely.  If the jury are satisfied that there is the highest
improbability that these persons could have had any previous knowledge of
Goodridge, or been concerned in any previous concert to rob him; if their
conduct that evening and the next day was marked by no circumstances of
suspicion; if from that moment until their arrest nothing appeared against
them; if they neither passed money, nor are found to have had money; if
the manner of the search of their house, and the circumstances attending
it, excite strong suspicions of unfair and fraudulent practices; if, in
the hour of their utmost peril, no promises of safety could draw from the
defendants any confession affecting themselves or others, it will be for
the jury to say whether they can pronounce them guilty.




The Dartmouth College Case.



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
assent_.

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."

After the institution thus created and constituted had existed,
uninterruptedly and usefully, nearly fifty years, the legislature of New
Hampshire passed 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 institute, 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
assent, 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 constitution 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
constitutional 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 latitude is given by the undefined power of
establishing an institute. To these new colleges, and this institute, 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 title 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.

It will be contended by the plaintiffs, that these acts are not valid and
binding on them without their assent,--

1. Because they are against common right, and the Constitution of New
Hampshire.

2. Because they are repugnant to the Constitution of the United States.

I am aware of the limits which bound the jurisdiction of the court in this
case, and that on this record nothing can be decided but the single
question, whether these acts are repugnant to the Constitution of the
United States. Yet it may assist in forming an opinion of their true
nature and character to compare them with those fundamental principles
introduced into the State governments for the purpose of limiting the
exercise of the legislative power, and which the Constitution of New
Hampshire expresses with great fulness and accuracy.

It is not too much to assert, that the legislature of New Hampshire would
not have been competent to pass the acts in question, and to make them
binding on the plaintiffs without their assent, even if there had been, in
the Constitution of New Hampshire, or of the United States, no special
restriction on their power, because these acts are not the exercise of a
power properly legislative. Their effect and object are to take away, from
one, rights, property, and franchises, and to grant them to another. This
is not the exercise of a legislative power. To justify the taking away of
vested rights there must be a forfeiture, to adjudge upon and declare
which is the proper province of the judiciary. Attainder and confiscation
are acts of sovereign power, not acts of legislation. The British
Parliament, among other unlimited powers, claims that of altering and
vacating charters; not as an act of ordinary legislation, but of
uncontrolled authority. It is theoretically omnipotent. Yet, in modern
times, it has very rarely attempted the exercise of this power.

The legislature of New Hampshire has no more power over the rights of the
plaintiffs than existed somewhere, in some department of government,
before the Revolution. The British Parliament could not have annulled or
revoked this grant as an act of ordinary legislation. If it had done it at
all, it could only have been in virtue of that sovereign power, called
omnipotent, which does not belong to any legislature in the United States.
The legislature of New Hampshire has the same power over this charter
which belonged to the king who granted it, and no more. By the law of
England, the power to create corporations is a part of the royal
prerogative. By the Revolution, this power may be considered as having
devolved on the legislature of the State, and it has accordingly been
exercised by the legislature. But the king cannot abolish a corporation,
or new-model it, or alter its powers, without its assent. This is the
acknowledged and well-known doctrine of the common law.

There are prohibitions in the Constitution and Bill of Rights of New
Hampshire, introduced for the purpose of limiting the legislative power
and protecting the rights and property of the citizens. One prohibition
is, "that no person shall be deprived of his property, immunities, or
privileges, put out of the protection of the law, or deprived of his life,
liberty, or estate, but by judgment of his peers or the law of the land."

In the opinion, however, which was given in the court below, it is denied
that the trustees under the charter had any property, immunity, liberty,
or privilege in this corporation, within the meaning of this prohibition
in the Bill of Rights. It is said that it is a public corporation and
public property; that the trustees have no greater interest in it than any
other individuals; that it is not private property, which they can sell or
transmit to their heirs, and that therefore they have no interest in it;
that their office is a public trust, like that of the Governor or a judge,
and that they have no more concern in the property of the college than the
Governor in the property of the State, or than the judges in the fines
which they impose on the culprits at their bar; that it is nothing to them
whether their powers shall be extended or lessened, any more than it is to
their honors whether their jurisdiction shall be enlarged or diminished.
It is necessary, therefore, to inquire into the true nature and character
of the corporation which was created by the charter of 1769.

There are divers sorts of corporations; and it may be safely admitted that
the legislature has more power over some than others. Some corporations
are for government and political arrangement; such, for example, as
cities, counties, and towns in New England. These may be changed and
modified as public convenience may require, due regard being always had to
the rights of property. Of such corporations, all who live within the
limits are of course obliged to be members, and to submit to the duties
which the law imposes on them as such. Other civil corporations are for
the advancement of trade and business, such as banks, insurance companies,
and the like. These are created, not by general law, but usually by grant.
Their constitution is special. It is such as the legislature sees fit to
give, and the grantees to accept.

The corporation in question is not a civil, although it is a lay
corporation. It is an eleemosynary corporation. It is a private charity,
originally founded and endowed by an individual, with a charter obtained
for it at his request, for the better administration of his charity. "The
eleemosynary sort of corporations are such as are constituted for the
perpetual distributions of the free alms or bounty of the founder of them,
to such persons as he has directed. Of this are all hospitals for the
maintenance of the poor, sick, and impotent; and all colleges both in our
universities and out of them." Eleemosynary corporations are for the
management of private property, according to the will of the donors. They
are private corporations. A college is as much a private corporation as a
hospital; especially a college founded, as this was, by private bounty. A
college is a charity. "The establishment of learning," says Lord
Hardwicke, "is a charity, and so considered in the statute of Elizabeth.
To devise to a college, for their benefit, is a laudable charity, and
deserves encouragement."

The legal signification of _a charity_ is derived chiefly from the
statute 43 Eliz. ch. 4. "Those purposes," says Sir William Grant, "are
considered _charitable_ which that statute enumerates." Colleges are
enumerated as charities in that statute. The government, in these cases,
lends its aid to perpetuate the beneficent intention of the donor, by
granting a charter under which his private charity shall continue to be
dispensed after his death. This is done either by incorporating the
objects of the charity, as, for instance, the scholars in a college or the
poor in a hospital, or by incorporating those who are to be governors or
trustees of the charity. In cases of the first sort, the founder is, by
the common law, visitor. In early times it became a maxim, that he who
gave the property might regulate it in future. "Cujus est dare, ejus est
disponere." This right of visitation descended from the founder to his
heir as a right of property, and precisely as his other property went to
his heir; and in default of heirs it went to the king, as all other
property goes to the king for the want of heirs. The right of visitation
arises from the property. It grows out of the endowment. The founder may,
if he please, part with it at the time when he establishes the charity,
and may vest it in others. Therefore, if he chooses that governors,
trustees, or overseers should be appointed in the charter, he may cause it
to be done, and his power of visitation may be transferred to them,
instead of descending to his heirs. The persons thus assigned or appointed
by the founder will be visitors, with all the powers of the founder, in
exclusion of his heir. The right of visitation, then, accrues to them, as
a matter of property, by the gift, transfer, or appointment of the
founder. This is a private right, which they can assert in all legal
modes, and in which they have the same protection of the law as in all
other rights. As visitors they may make rules, ordinances, and statutes,
and alter and repeal them, as far as permitted so to do by the charter.
Although the charter proceeds from the crown or the government, it is
considered as the will of the donor. It is obtained at his request. He
uses it as the rule which is to prevail in the dispensation of his bounty
in all future times. The king or government which grants the charter is
not thereby the founder, but he who furnishes the funds. The gift of the
revenues is the foundation.

The leading case on this subject is _Phillips v. Bury_. This was an
ejectment brought to recover the rectory-house, &c. of Exeter College in
Oxford. The question was whether the plaintiff or defendant was legal
rector. Exeter College was founded by an individual, and incorporated by a
charter granted by Queen Elizabeth. The controversy turned upon the power
of the visitor, and, in the discussion of the cause, the nature of college
charters and corporations was very fully considered.

Lord Holt's judgment is that that college was a _private
corporation_, and that the founder had a right to appoint a visitor,
and to give him such power as he saw fit.

The learned Bishop Stillingfleet's argument in the same cause, as a member
of the House of Lords, when it was there heard, exhibits very clearly the
nature of colleges and similar corporations. It is to the following
effect. "That colleges, although founded by private persons, are yet
incorporated by the king's charter; but although the kings by their
charter made the colleges to be such in law, that is, to be legal
corporations, yet they left to the particular founders authority to
appoint what statutes they thought fit for the regulation of them. And not
only the statutes, but the appointment of visitors, was left to them, and
the manner of government, and the several conditions on which any persons
were to be made or continue partakers of their bounty."

These opinions received the sanction of the House of Lords, and they seem
to be settled and undoubted law.

"There is nothing better established," says Lord Commissioner Eyre, "than
that this court does not entertain a general jurisdiction, or regulate and
control charities _established by charter_. There the establishment
is fixed and determined; and the court has no power to vary it. If the
governors established for the regulation of it are not those who have the
management of the revenue, this court has no jurisdiction, and if it is
ever so much abused, as far as it respects the jurisdiction of this court
it is without remedy; but if those established as governors have also the
management of the revenues, this court does assume a jurisdiction of
necessity, so far as they are to be considered as trustees of the
revenue."

"The foundations of colleges," says Lord Mansfield, "are to be considered
in two views; namely, as they are _corporations_ and as they are
_eleemosynary_. As eleemosynary, they are the creatures of the
founder; he may delegate his power, either generally or specially; he may
prescribe particular modes and manners, as to the exercise of part of it."

In New England, and perhaps throughout the United States, eleemosynary
corporations have been generally established by incorporating governors,
or trustees, and vesting in them the right of visitation. The case before
the court is clearly that of an eleemosynary corporation. It is, in the
strictest legal sense, a private charity. In _King v. St. Catherine's
Hall_, that college is called a private eleemosynary lay corporation.
It was endowed by a private founder, and incorporated by letters patent.
And in the same manner was Dartmouth College founded and incorporated. Dr.
Wheelock is declared by the charter to be its founder. It was established
by him, or funds contributed and collected by himself.

As such founder, he had a right of visitation, which he assigned to the
trustees, and they received it by his consent and appointment, and held it
under the charter. He appointed these trustees visitors, and in that
respect to take place of his heir; as he might have appointed devisees, to
take his estate instead of his heir. Little, probably, did he think, at
that time, that the legislature would ever take away this property and
these privileges, and give them to others. Little did he suppose that this
charter secured to him and his successors no legal rights. Little did the
other donors think so. If they had, the college would have been, what the
university is now, a thing upon paper, existing only in name.

The numerous academies in New England have been established substantially
in the same manner. They hold their property by the same tenure, and no
other. Nor has Harvard College any surer title than Dartmouth College. It
may to-day have more friends; but to-morrow it may have more enemies. Its
legal rights are the same. So also of Yale College; and, indeed, of all
the others. When the legislature gives to these institutions, it may and
does accompany its grants with such conditions as it pleases. The grant of
lands by the legislature of New Hampshire to Dartmouth College, in 1789,
was accompanied with various conditions. When donations are made, by the
legislature or others, to a charity already existing, without any
condition, or the specification of any new use, the donation follows the
nature of the charity. Hence the doctrine, that all eleemosynary
corporations are private bodies. They are founded by private persons, and
on private property. The public cannot be charitable in these
institutions. It is not the money of the public, but of private persons,
which is dispensed. It may be public, that is general, in its uses and
advantages; and the State may very laudably add contributions of its own
to the funds; but it is still private in the tenure of the property, and
in the right of administering the funds.

The charter declares that the powers conferred on the trustees are
"privileges, advantages, liberties, and immunities"; and that they shall
be for ever holden by them and their successors. The New Hampshire Bill of
Rights declares that no one shall be deprived of his "property,
privileges, or immunities," but by judgment of his peers, or the law of
the land. The argument on the other side is, that, although these terms
may mean something in the Bill of Rights, they mean nothing in this
charter. They are equivalent with _franchises_. Blackstone says that
_franchise_ and _liberty_ are used as synonymous terms.

The privilege, then, of being a member of a corporation, under a lawful
grant, and of exercising the rights and powers of such member, is such a
privilege, _liberty_, or _franchise_, as has been the object of
legal protection, and the subject of a legal interest, from the time of
Magna Charta to the present moment. The plaintiffs have such an interest
in this corporation, individually, as they could assert and maintain in a
court of law, not as agents of the public, but in their own right. Each
trustee has a _franchise_, and if he be disturbed in the enjoyment of
it, he would have redress, on appealing to the law, as promptly as for any
other injury. If the other trustees should conspire against any one of
them to prevent his equal right and voice in the appointment of a
president or professor, or in the passing of any statute or ordinance of
the college, he would be entitled to his action, for depriving him of his
franchise. It makes no difference, that this property is to be holden and
administered, and these franchises exercised, for the purpose of diffusing
learning. No principle and no case establishes any such distinction. The
public may be benefited by the use of this property. But this does not
change the nature of the property, or the rights of the owners. The object
of the charter may be public good; so it is in all other corporations; and
this would as well justify the resumption or violation of the grant in any
other case as in this. In the case of an advowson, the use is public, and
the right cannot be turned to any private benefit or emolument. It is
nevertheless a legal private right, and the _property_ of the owner,
as emphatically as his freehold. The rights and privileges of trustees,
visitors, or governors of incorporated colleges, stand on the same
foundation. They are so considered, both by Lord Holt and Lord Hardwicke.

To contend that the rights of the plaintiffs may be taken away, because
they derive from them no pecuniary benefit or private emolument, or
because they cannot be transmitted to their heirs, or would not be assets
to pay their debts, is taking an extremely narrow view of the subject.
According to this notion, the case would be different, if, in the charter,
they had stipulated for a commission on the disbursement of the funds; and
they have ceased to have any interest in the property, because they have
undertaken to administer it gratuitously.

It cannot be necessary to say much in refutation of the idea, that there
cannot be a legal interest, or ownership, in any thing which does not
yield a pecuniary profit; as if the law regarded no rights but the rights
of money, and of visible, tangible property. Of what nature are all rights
of suffrage? No elector has a particular personal interest; but each has a
legal right, to be exercised at his own discretion, and it cannot be taken
away from him. The exercise of this right directly and very materially
affects the public; much more so than the exercise of the privileges of a
trustee of this college. Consequences of the utmost magnitude may
sometimes depend on the exercise of the right of suffrage by one or a few
electors. Nobody was ever yet heard to contend, however, that on that
account the public might take away the right, or impair it. This notion
appears to be borrowed from no better source than the repudiated doctrine
of the three judges in the Aylesbury case. The doctrine having been
exploded for a century, seems now for the first time to be revived.

Individuals have a right to use their own property for purposes of
benevolence, either towards the public, or towards other individuals. They
have a right to exercise this benevolence in such lawful manner as they
may choose; and when the government has induced and excited it, by
contracting to give perpetuity to the stipulated manner of exercising it,
it is not law, but violence, to rescind this contract, and seize on the
property. Whether the State will grant these franchises, and under what
conditions it will grant them, it decides for itself. But when once
granted, the constitution holds them to be sacred, till forfeited for just
cause.

That all property, of which the use may be beneficial to the public,
belongs therefore to the public, is quite a new doctrine. It has no
precedent, and is supported by no known principle. Dr. Wheelock might have
answered his purposes, in this case, by executing a private deed of trust.
He might have conveyed his property to trustees, for precisely such uses
as are described in this charter. Indeed, it appears that he had
contemplated the establishing of his school in that manner, and had made
his will, and devised the property to the same persons who were afterwards
appointed trustees in the charter. Many literary and other charitable
institutions are founded in that manner, and the trust is renewed, and
conferred on other persons, from time to time, as occasion may require. In
such a case, no lawyer would or could say, that the legislature might
divest the trustees, constituted by deed or will, seize upon the property,
and give it to other persons, for other purposes. And does the granting of
a charter, which is only done to perpetuate the trust in a more convenient
manner, make any difference? Does or can this change the nature of the
charity, and turn it into a public political corporation? Happily, we are
not without authority on this point. It has been considered and adjudged.
Lord Hardwicke says, in so many words, "The charter of the crown cannot
make a charity more or less public, but only more permanent than it would
otherwise be."

The granting of the corporation is but making the trust perpetual, and
does not alter the nature of the charity. The very object sought in
obtaining such charter, and in giving property to such a corporation, is
to make and keep it private property, and to clothe it with all the
security and inviolability of private property. The intent is, that there
shall be a legal private ownership, and that the legal owners shall
maintain and protect the property, for the benefit of those for whose use
it was designed. Who ever endowed the public? Who ever appointed a
legislature to administer his charity? Or who ever heard, before, that a
gift to a college, or a hospital, or an asylum, was, in reality, nothing
but a gift to the State?

The State of Vermont is a principal donor to Dartmouth College. The lands
given lie in that State. This appears in the special verdict. Is Vermont
to be considered as having intended a gift to the State of New Hampshire
in this case, as, it has been said, is to be the reasonable construction
of all donations to the college? The legislature of New Hampshire affects
to represent the public, and therefore claims a right to control all
property destined to public use. What hinders Vermont from considering
herself equally the representative of the public, and from resuming her
grants, at her own pleasure? Her right to do so is less doubtful than the
power of New Hampshire to pass the laws in question. I hope enough has
been said to show that the trustees possessed vested liberties,
privileges, and immunities, under this charter; and that such liberties,
privileges, and immunities, being once lawfully obtained and vested, are
as inviolable as any vested rights of property whatever. Rights to do
certain acts, such, for instance, as the visitation and superintendence of
a college and the appointment of its officers, may surely be vested
rights, to all legal intents, as completely as the right to possess
property. A late learned judge of this court has said, "When I say that a
_right_ is vested in a citizen, I mean that he has the power to do
_certain actions_, or to possess _certain things_, according to
the law of the land."

If such be the true nature of the plaintiffs' interests under this
charter, what are the articles in the New Hampshire Bill of Rights which
these acts infringe?

They infringe the second article; which says, that the citizens of the
State have a right to hold and possess property. The plaintiffs had a
legal property in this charter; and they had acquired property under it.
The acts deprive them of both. They impair and take away the charter; and
they appropriate the property to new uses, against their consent. The
plaintiffs cannot now hold the property acquired by themselves, and which
this article says they have a right to hold.

They infringe the twentieth article. By that article it is declared that,
in questions of property, there is a right to trial. The plaintiffs are
divested, without trial or judgment.

They infringe the twenty-third article. It is therein declared that no
retrospective laws shall be passed. This article bears directly on the
case. These acts must be deemed to be retrospective, within the settled
construction of that term. What a retrospective law is, has been decided,
on the construction of this very article, in the Circuit Court for the
First Circuit, The learned judge of that circuit says: "Every statute
which takes away or impairs vested rights, acquired under existing laws,
must be deemed retrospective." That all such laws are retrospective was
decided also in the case of _Dash v. Van Kleek_, where a most learned
judge quotes this article from the constitution of New Hampshire, with
manifest approbation, as a plain and clear expression of those fundamental
and unalterable principles of justice, which must lie at the foundation of
every free and just system of laws. Can any man deny that the plaintiffs
had rights, under the charter, which were legally vested, and that by
these acts those rights are impaired?

"It is a principle in the English law," says Chief Justice Kent, in the
case last cited, "as ancient as the law itself, that a statute, even of
its omnipotent Parliament, is not to have a retrospective effect. 'Nova
constitutio futuris formam imponere debet, et non praeteritis.' The maxim
in Bracton was taken from the civil law, for we find in that system the
same principle, expressed substantially in the same words, that the law-
giver cannot alter his mind to the prejudice of a vested right. 'Nemo
potest mutare concilium suum in alterius injuriam.'"

These acts infringe also the thirty-seventh article of the constitution of
New Hampshire; which says, that the powers of government shall be kept
separate. By these acts, the legislature assumes to exercise a judicial
power. It declares a forfeiture, and resumes franchises, once granted,
without trial or hearing.

If the constitution be not altogether waste-paper, it has restrained the
power of the legislature in these particulars. If it has any meaning, it
is that the legislature shall pass no act directly and manifestly
impairing private property and private privileges. It shall not judge by
act. It shall not decide by act. It shall not deprive by act. But it shall
leave all these things to be tried and adjudged by the law of the land.

The fifteenth article has been referred to before. It declares that no one
shall be "deprived of his property, immunities, or privileges, but by the
judgment of his peers or the law of the land." Notwithstanding the light
in which the learned judges in New Hampshire viewed the rights of the
plaintiffs under the charter, and which has been before adverted to, it is
found to be admitted in their opinion, that those rights are privileges
within the meaning of this fifteenth article of the Bill of Rights. Having
quoted that article, they say: "That the right to manage the affairs of
this college is a privilege, within the meaning of this clause of the Bill
of Rights, is not to be doubted." In my humble opinion, this surrenders
the point. To resist the effect of this admission, however, the learned
judges add: "But how a privilege can be protected from the operation of
the law of the land by a clause in the constitution, declaring that it
shall not be taken away but by the law of the land, is not very easily
understood." This answer goes on the ground, that the acts in question are
laws of the land, within the meaning of the constitution. If they be so,
the argument drawn from this article is fully answered. If they be not so,
it being admitted that the plaintiffs' rights are "privileges," within the
meaning of the article, the argument is not answered, and the article is
infringed by the acts. Are, then, these acts of the legislature, which
affect only particular persons and their particular privileges, laws of
the land? Lord Coke citing and commenting on the celebrated twenty-ninth
chapter of Magna Charta, says: "No man shall be disseized, &c., unless it
be by the lawful judgment, that is, verdict of equals, or by the law of
the land, that is (to speak it once for all), by the due course and
process of law." Have the plaintiffs lost their franchises by "due course
and process of law"? On the contrary, are not these acts "particular acts
of the legislature, which have no relation to the community in general,
and which are rather sentences than laws"?

By the law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and renders
judgment only after trial. The meaning is, that every citizen shall hold
his life, liberty, property, and immunities under the protection of the
general rules which govern society. Every thing which may pass under the
form of an enactment is not therefore to be considered the law of the
land. If this were so, acts of attainder, bills of pains and penalties,
acts of confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments, decrees,
and forfeitures in all possible forms, would be the law of the land.

Such a strange construction would render constitutional provisions of the
highest importance completely inoperative and void. It would tend directly
to establish the union of all powers in the legislature. There would be no
general, permanent law for courts to administer or men to live under. The
administration of justice would be an empty form, an idle ceremony. Judges
would sit to execute legislative judgments and decrees; not to declare the
law or to administer the justice of the country.

That the power of electing and appointing the officers of this college is
not only a right of the trustees as a corporation, generally, and in the
aggregate, but that each individual trustee has also his own individual
franchise in such right of election and appointment, is according to the
language of all the authorities. Lord Holt says: "It is agreeable to
reason and the rules of law, that a franchise should be vested in the
corporation aggregate, and yet the benefit of it to redound to the
particular members, and to be enjoyed by them in their private capacity.
Where the privilege of election is used by particular persons, _it is a
particular right, vested in every particular man_."

It is also to be considered, that the president and professors of this
college have rights to be affected by these acts. Their interest is
similar to that of fellows in the English colleges; because they derive
their living, wholly or in part, from the founders' bounty. The president
is one of the trustees or corporators. The professors are not necessarily
members of the corporation; but they are appointed by the trustees, are
removable only by them, and have fixed salaries payable out of the general
funds of the college. Both president and professors have freeholds in
their offices; subject only to be removed by the trustees, as their legal
visitors, for good cause. All the authorities speak of fellowships in
colleges as freeholds, notwithstanding the fellows may be liable to be
suspended or removed, for misbehavior, by their constituted visitors.

Nothing could have been less expected, in this age, than that there should
have been an attempt, by acts of the legislature, to take away these
college livings, the inadequate but the only support of literary men who
have devoted their lives to the instruction of youth. The president and
professors were appointed by the twelve trustees. They were accountable to
nobody else, and could be removed by nobody else. They accepted their
offices on this tenure. Yet the legislature has appointed other persons,
with power to remove these officers and to deprive them of their livings;
and those other persons have exercised that power. No description of
private property has been regarded as more sacred than college livings.
They are the estates and freeholds of a most deserving class of men; of
scholars who have consented to forego the advantages of professional and
public employments, and to devote themselves to science and literature and
the instruction of youth in the quiet retreats of academic life. Whether
to dispossess and oust them; to deprive them of their office, and to turn
them out of their livings; to do this, not by the power of their legal
visitors or governors, but by acts of the legislature, and to do it
without forfeiture and without fault; whether all this be not in the
highest degree an indefensible and arbitrary proceeding, is a question of
which there would seem to be but one side fit for a lawyer or a scholar to
espouse.

If it could be made to appear that the trustees and the president and
professors held their offices and franchises during the pleasure of the
legislature, and that the property holden belonged to the State, then
indeed the legislature have done no more than they had a right to do. But
this is not so. The charter is a charter of privileges and immunities; and
these are holden by the trustees expressly against the State for ever.

It is admitted that the State, by its courts of law, can enforce the will
of the donor, and compel a faithful execution of the trust. The plaintiffs
claim no exemption from legal responsibility. They hold themselves at all
times answerable to the law of the land, for their conduct in the trust
committed to them. They ask only to hold the property of which they are
owners, and the franchises which belong to them, until they shall be
found, by due course and process of law, to have forfeited them.

It can make no difference whether the legislature exercise the power it
has assumed by removing the trustees and the president and professors,
directly and by name, or by appointing others to expel them. The principle
is the same, and in point of fact the result has been the same. If the
entire franchise cannot be taken away, neither can it be essentially
impaired. If the trustees are legal owners of the property, they are sole
owners. If they are visitors, they are sole visitors. No one will be found
to say, that, if the legislature may do what it has done, it may not do
any thing and every thing which it may choose to do, relative to the
property of the corporation, and the privileges of its members and
officers.

If the view which has been taken of this question be at all correct, this
was an eleemosynary corporation, a private charity. The property was
private property. The trustees were visitors, and the right to hold the
charter, administer the funds, and visit and govern the college, was a
franchise and privilege, solemnly granted to them. The use being public in
no way diminishes their legal estate in the property, or their title to
the franchise. There is no principle, nor any case, which declares that a
gift to such a corporation is a gift to the public. The acts in question
violate property. They take away privileges, immunities, and franchises.
They deny to the trustees the protection of the law; and they are
retrospective in their operation. In all which respects they are against
the constitution of New Hampshire.

The plaintiffs contend, in the second place, that the acts in question are
repugnant to the tenth section of the first article of the Constitution of
the United States. The material words of that section are: "No State shall
pass any bill of attainder, _ex post facto_ law, or law impairing the
obligation of contracts."

The object of these most important provisions in the national constitution
has often been discussed, both here and elsewhere. It is exhibited with
great clearness and force by one of the distinguished persons who framed
that instrument. "Bills of attainder, _ex post facto_ laws, and laws
impairing the obligation of contracts, are contrary to the first
principles of the social compact, and to every principle of sound
legislation. The two former are expressly prohibited by the declarations
prefixed to some of the State constitutions, and all of them are
prohibited by the spirit and scope of these fundamental charters. Our own
experience has taught us, nevertheless, that additional fences against
these dangers ought not to be omitted. Very properly, therefore, have the
convention added this constitutional bulwark, in favor of personal
security and private rights; and I am much deceived, if they have not, in
so doing, as faithfully consulted the genuine sentiments as the undoubted
interests of their constituents. The sober people of America are weary of
the fluctuating policy which has directed the public councils. They have
seen with regret, and with indignation, that sudden changes, and
legislative interferences in cases affecting personal rights, become jobs
in the hands of enterprising and influential speculators, and snares to
the more industrious and less informed part of the community. They have
seen, too, that one legislative interference is but the link of a long
chain of repetitions; every subsequent interference being naturally
produced by the effects of the preceding."

It has already been decided in this court, 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. In the
case of _Fletcher v. Peck_, this court says: "A contract is a compact
between two or more parties, and is either executory or executed. An
executory contract is one in which a party binds himself to do, or not to
do, a particular thing; such was the law under which the conveyance was
made by the government. A contract executed is one in which the object of
contract is performed; and this, says Blackstone, differs in nothing from
a grant. The contract between Georgia and the purchasers was executed by
the grant. A contract executed, as well as one which is executory,
contains obligations binding on the parties. A grant, in its own nature,
amounts to an extinguishment of the right of the grantor, and implies a
contract not to reassert that right. If, under a fair construction of the
Constitution, grants are comprehended under the term contracts, is a grant
from the State excluded from the operation of the provision? Is the clause
to be considered as inhibiting the State from impairing the obligation of
contracts between two individuals, but as excluding from that inhibition
contracts made with itself? The words themselves contain no such
distinction. They are general, and are applicable to contracts of every
description. If contracts made with the State are to be exempted from
their operation, the exception must arise from the character of the
contracting party, not from the words which are employed. Whatever respect
might have been felt for the State sovereignties, it is not to be
disguised that the framers of the Constitution viewed with some
apprehension the violent acts which might grow out of the feelings of the
moment; and that the people of the United States, in adopting that
instrument, have manifested a determination to shield themselves and their
property from the effects of those sudden and strong passions to which men
are exposed. The restrictions on the legislative power of the States are
obviously founded in this sentiment; and the Constitution of the United
States contains what may be deemed a bill of rights for the people of each
State."

It also has been decided that a grant by a State before the Revolution is
as much to be protected as a grant since. But the case of _Terrett v.
Taylor_, before cited, is of all others most pertinent to the present
argument. Indeed, the judgment of the court in that case seems to leave
little to be argued or decided in this. "A private corporation," say the
court, "created by the legislature, may lose its franchises by a
_misuser_ or a _nonuser_ of them; and they may be resumed by the
government under a judicial judgment upon a _quo warranto_ to
ascertain and enforce the forfeiture. This is the common law of the land,
and is a tacit condition annexed to the creation of every such
corporation. Upon a change of government, too, it may be admitted, that
such exclusive privileges attached to a private corporation as are
inconsistent with the new government may be abolished. In respect, also,
to _public_ corporations which exist only for public purposes, such
as counties, towns, cities, and so forth, the legislature may, under
proper limitations, have a right to change, modify, enlarge, or restrain
them, securing, however, the property for the uses of those for whom and
at whose expense it was originally purchased. But that the 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, we are not prepared to admit; 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 Constitution of the United States, and upon the decisions of most
respectable judicial tribunals, in resisting such a doctrine."

This court, then, does not admit the doctrine, that a legislature can
repeal statutes creating private corporations. If it cannot repeal them
altogether, of course it cannot repeal any part of them, or impair them,
or essentially alter them, without the consent of the corporators. If,
therefore, it has been shown that this college is to be regarded as a
private charity, this case is embraced within the very terms of that
decision. A grant of corporate powers and privileges is as much a contract
as a grant of land. What proves all charters of this sort to be contracts
is, that they must be accepted to give them force and effect. If they are
not accepted, they are void. And in the case of an existing corporation,
if a new charter is given it, it may even accept part and reject the rest.
In _Rex v. Vice-Chancellor of Cambridge_, Lord Mansfield says: "There
is a vast deal of difference between a new charter granted to a new
corporation, (who must take it as it is given,) and a new charter given to
a corporation already in being, and acting either under a former charter
or under prescriptive usage. The latter, a corporation already existing,
are not obliged to accept the new charter _in toto_, and to receive
either all or none of it; they may act partly under it, and partly under
their old charter or prescription. The validity of these new charters must
turn upon the acceptance of them." In the same case Mr. Justice Wilmot
says: "It is the concurrence and acceptance of the university that gives
the force to the charter of the crown." In the _King v. Pasmore_,
Lord Kenyon observes: "Some things are clear: when a corporation exists
capable of discharging its functions, the crown cannot obtrude another
charter upon them; they may either accept or reject it."

And because charters of incorporation are of the nature of contracts, they
cannot be altered or varied but by consent of the original parties. If a
charter be granted by the king, it may be altered by a new charter granted
by the king, and accepted by the corporators. But if the first charter be
granted by Parliament, the consent of Parliament must be obtained to any
alteration. In _King v. Miller_, Lord Kenyon says: "Where a
corporation takes its rise from the king's charter, the king by granting,
and the corporation by accepting another charter, may alter it, because it
is done with the consent of all the parties who are competent to consent
to the alteration."

There are, in this case, all the essential constituent parts of a
contract. There is something to be contracted about, there are parties,
and there are plain terms in which the agreement of the parties on the
subject of the contract is expressed. There are mutual considerations and
inducements. The charter recites, that the founder, on his part, has
agreed to establish his seminary in New Hampshire, and to enlarge it
beyond its original design, among other things, for the benefit of that
Province; and thereupon a charter is given to him and his associates,
designated by himself, promising and assuring to them, under the plighted
faith of the State, the right of governing the college and administering
its concerns in the manner provided in the charter. There is a complete
and perfect grant to them of all the power of superintendence, visitation,
and government. Is not this a contract? If lands or money had been granted
to him and his associates, for the same purposes, such grant could not be
rescinded. And is there any difference, in legal contemplation, between a
grant of corporate franchises and a grant of tangible property? No such
difference is recognized in any decided case, nor does it exist in the
common apprehension of mankind.

It is therefore contended, that this case falls within the true meaning of
this provision of the Constitution, as expounded in the decisions of this
court; that the charter of 1769 is a contract, a stipulation or agreement,
mutual in its considerations, express and formal in its terms, and of a
most binding and solemn nature. That the acts in question impair this
contract, has already been sufficiently shown. They repeal and abrogate
its most essential parts.

A single observation may not be improper on the opinion of the court of
New Hampshire, which has been published. The learned judges who delivered
that opinion have viewed this question in a very different light from that
in which the plaintiffs have endeavored to exhibit it. After some general
remarks, they assume that this college is a public corporation; and on
this basis their judgment rests. Whether all colleges are not regarded as
private and eleemosynary corporations, by all law writers and all judicial
decisions; whether this college was not founded by Dr. Wheelock; whether
the charter was not granted at his request, the better to execute a trust,
which he had already created; whether he and his associates did not become
visitors, by the charter; and whether Dartmouth College be not, therefore,
in the strictest sense, a private charity, are questions which the learned
judges do not appear to have discussed.

It is admitted in that opinion, that, if it be a private corporation, its
rights stand on the same ground as those of an individual. The great
question, therefore, to be decided is, To which class of corporations do
colleges thus founded belong? And the plaintiffs have endeavored to
satisfy the court, that, according to the well-settled principles and
uniform decisions of law, they are private, eleemosynary corporations.

Much has heretofore been said on the necessity of admitting such a power
in the legislature as has been assumed in this case. Many cases of
possible evil have been imagined, which might otherwise be without remedy.
Abuses, it is contended, might arise in the management of such
institutions, which the ordinary courts of law would be unable to correct.
But this is only another instance of that habit of supposing extreme
cases, and then of reasoning from them, which is the constant refuge of
those who are obliged to defend a cause, which, upon its merits, is
indefensible. It would be sufficient to say in answer, that it is not
pretended that there was here any such case of necessity. But a still more
satisfactory answer is, that the apprehension of danger is groundless, and
therefore the whole argument fails. Experience has not taught us that
there is danger of great evils or of great inconvenience from this source.
Hitherto, neither in our own country nor elsewhere have such cases of
necessity occurred. The judicial establishments of the State are presumed
to be competent to prevent abuses and violations of trust, in cases of
this kind, as well as in all others. If they be not, they are imperfect,
and their amendment would be a most proper subject for legislative wisdom.
Under the government and protection of the general laws of the land, these
institutions have always been found safe, as well as useful. They go on,
with the progress of society, accommodating themselves easily, without
sudden change or violence, to the alterations which take place in its
condition, and in the knowledge, the habits, and pursuits of men. The
English colleges were founded in Catholic ages. Their religion was
reformed with the general reformation of the nation; and they are suited
perfectly well to the purpose of educating the Protestant youth of modern
times. Dartmouth College was established under a charter granted by the
Provincial government; but a better constitution for a college or one more
adapted to the condition of things under the present government, in all
material respects, could not now be framed. Nothing in it was found to
need alteration at the Revolution. The wise men of that day saw in it one
of the best hopes of future times, and commended it as it was, with
parental care, to the protection and guardianship of the government of the
State. A charter of more liberal sentiments, of wiser provisions, drawn
with more care, or in a better spirit, could not be expected at any
time or from any source. The college needed no change in its organization
or government. That which it did need was the kindness, the patronage, the
bounty of the legislature; not a mock elevation to the character of a
university, without the solid benefit of a shilling's donation to sustain
the character; not the swelling and empty authority of establishing
institutes and other colleges. This unsubstantial pageantry would seem to
have been in derision of the scanty endowment and limited means of an
unobtrusive, but useful and growing seminary. Least of all was there a
necessity, or pretence of necessity, to infringe its legal rights, violate
its franchises and privileges, and pour upon it these overwhelming streams
of litigation.

But this argument from necessity would equally apply in all other cases.
If it be well founded, it would prove, that, whenever any inconvenience or
evil is experienced from the restrictions imposed on the legislature by
the Constitution, these restrictions ought to be disregarded. It is enough
to say, that the people have thought otherwise. They have, most wisely,
chosen to take the risk of occasional inconvenience from the want of
power, in order that there might be a settled limit to its exercise, and a
permanent security against its abuse. They have imposed prohibitions and
restraints; and they have not rendered these altogether vain and nugatory
by conferring the power of dispensation. If inconvenience should arise
which the legislature cannot remedy under the power conferred upon it, it
is not answerable for such inconvenience. That which it cannot do within
the limits prescribed to it, it cannot do at all. No legislature in this
country is able, and may the time never come when it shall be able, to
apply to itself the memorable expression of a Roman pontiff: "Licet hoc
_de jure_ non possumus, volumus tamen _de plenitudine potestatis_."

The case before the court is not of ordinary importance, nor of every-day
occurrence. It affects not this college only, but every college, and all
the literary institutions of the country. They have flourished hitherto,
and have become in a high degree respectable and useful to the community.
They have all a common principle of existence, the inviolability of their
charters. It will be a dangerous, a most dangerous experiment, to hold
these institutions subject to the rise and fall of popular parties, and
the fluctuations of political opinions. If the franchise may be at any
time taken away, or impaired, the property also may be taken away, or its
use perverted. Benefactors will have no certainty of effecting the object
of their bounty; and learned men will be deterred from devoting themselves
to the service of such institutions, from the precarious title of their
offices. Colleges and halls will be deserted by all better spirits, and
become a theatre for the contentions of politics, Party and faction will
be cherished in the places consecrated to piety and learning. These
consequences are neither remote nor possible only. They are certain and
immediate.

When the court in North Carolina declared the law of the State, which
repealed a grant to its university, unconstitutional and void, the
legislature had the candor and the wisdom to repeal the law. This example,
so honorable to the State which exhibited it, is most fit to be followed
on this occasion. And there is good reason to hope that a State, which has
hitherto been so much distinguished for temperate counsels, cautious
legislation, and regard to law, will not fail to adopt a course which will
accord with her highest and best interests, and in no small degree elevate
her reputation. It was for many and obvious reasons most anxiously desired
that the question of the power of the legislature over this charter should
have been finally decided in the State court. An earnest hope was
entertained that the judges of the court might have viewed the case in a
light favorable to the rights of the trustees. That hope has failed. It is
here that those rights are now to be maintained, or they are prostrated
for ever. "Omnia alia perfugia bonorum, subsidia, consilia, auxilia, jura
ceciderunt. Quem enim alium appellem? quem obtester? quern implorem? Nisi
hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quae spe
exigua extremaque pendet, tenuerimus; nihil est praeterea quo confugere
possimus." [1]

This, sir, is my case. It is the case, not merely of that humble
institution, it is the case of every college in the land. It is more. It
is the case of every eleemosynary institution throughout our country--of
all those great charities formed by the piety of our ancestors, to
alleviate human misery, and scatter blessings along the pathway of life.
It is more! It is, in some sense, the case of every man among us who has
property, of which he may be stripped, for the question is simply this:
Shall our State legislatures be allowed to take that which is not their
own, to turn it from its original use, and apply it to such ends or
purposes as they in their discretion shall see fit?

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. [2]

Sir, I know not how others may feel (glancing at the opponents of the
colleges before him), but for myself, when I see my Alma Mater surrounded,
like Caesar, 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!_ [3]




First Settlement of New England.



Let us rejoice that we behold this day. Let us be thankful that we have
lived to see the bright and happy breaking of the auspicious morn, which
commences the third century of the history of New England. Auspicious,
indeed,--bringing a happiness beyond the common allotment of Providence
to men,--full of present joy, and gilding with bright beams the prospect
of futurity, is the dawn that awakens us to the commemoration of the
landing of the Pilgrims.

Living at an epoch which naturally marks the progress of the history of
our native land, we have come hither to celebrate the great event with
which that history commenced. For ever honored be this, the place of our
fathers' refuge! For ever remembered the day which saw them, weary and
distressed, broken in every thing but spirit, poor in all but faith and
courage, at last secure from the dangers of wintry seas, and impressing
this shore with the first footsteps of civilized man!

It is a noble faculty of our nature which enables us to connect our
thoughts, our sympathies, and our happiness with what is distant in place
or time; and, looking before and after, to hold communion at once with our
ancestors and our posterity. Human and mortal although we are, we are
nevertheless not mere insulated beings, without relation to the past or
the future. Neither the point of time, nor the spot of earth, in which we
physically live, bounds our rational and intellectual enjoyments. We live
in the past by a knowledge of its history; and in the future, by hope and
anticipation. By ascending to an association with our ancestors; by
contemplating their example and studying their character; by partaking
their sentiments, and imbibing their spirit; by accompanying them in their
toils, by sympathizing in their sufferings, and rejoicing in their
successes and their triumphs; we seem to belong to their age, and to
mingle our own existence with theirs. We become their contemporaries, live
the lives which they lived, endure what they endured, and partake in the
rewards which they enjoyed. And in like manner, by running along the line
of future time, by contemplating the probable fortunes of those who are
coming after us, by attempting something which may promote their
happiness, and leave some not dishonorable memorial of ourselves for their
regard, when we shall sleep with the fathers, we protract our own earthly
being, and seem to crowd whatever is future, as well as all that is past,
into the narrow compass of our earthly existence. As it is not a vain and
false, but an exalted and religious imagination, which leads us to raise
our thoughts from the orb, which, amidst this universe of worlds, the
Creator has given us to inhabit, and to send them with something of the
feeling which nature prompts, and teaches to be proper among children of
the same Eternal Parent, to the contemplation of the myriads of fellow-
beings with which his goodness has peopled the infinite of space; so
neither is it false or vain to consider ourselves as interested and
connected with our whole race, through all time; allied to our ancestors;
allied to our posterity; closely compacted on all sides with others;
ourselves being but links in the great chain of being, which begins with
the origin of our race, runs onward through its successive generations,
binding together the past, the present, and the future, and terminating at
last, with the consummation of all things earthly, at the throne of God.

There may be, and there often is, indeed, a regard for ancestry, which
nourishes only a weak pride; as there is also a care for posterity, which
only disguises an habitual avarice, or hides the workings of a low and
grovelling vanity. But there is also a moral and philosophical respect for
our ancestors, which elevates the character and improves the heart. Next
to the sense of religious duty and moral feeling, I hardly know what
should bear with stronger obligation on a liberal and enlightened mind,
than a consciousness of alliance with excellence which is departed; and a
consciousness, too, that in its acts and conduct, and even in its
sentiments and thoughts, it may be actively operating on the happiness of
those who come after it. Poetry is found to have few stronger conceptions,
by which it would affect or overwhelm the mind, than those in which it
presents the moving and speaking image of the departed dead to the senses
of the living. This belongs to poetry, only because it is congenial to our
nature. Poetry is, in this respect, but the handmaid of true philosophy
and morality; it deals with us as human beings, naturally reverencing
those whose visible connection with this state of existence is severed,
and who may yet exercise we know not what sympathy with ourselves; and
when it carries us forward, also, and shows us the long continued result
of all the good we do, in the prosperity of those who follow us, till it
bears us from ourselves, and absorbs us in an intense interest for what
shall happen to the generations after us, it speaks only in the language
of our nature, and affects us with sentiments which belong to us as human
beings.

Standing in this relation to our ancestors and our posterity, we are
assembled on this memorable spot, to perform the duties which that
relation and the present occasion impose upon us. We have come to this
Rock, to record here our homage for our Pilgrim Fathers; our sympathy in
their sufferings; our gratitude for their labors; our admiration of their
virtues; our veneration for their piety; and our attachment to those
principles of civil and religious liberty, which they encountered the
dangers of the ocean, the storms of heaven, the violence of savages,
disease, exile, and famine, to enjoy and to establish. And we would leave
here, also, for the generations which are rising up rapidly to fill our
places, some proof that we have endeavored to transmit the great
inheritance unimpaired; that in our estimate of public principles and
private virtue, in our veneration of religion and piety, in our devotion
to civil and religious liberty, in our regard for whatever advances human
knowledge or improves human happiness, we are not altogether unworthy of
our origin.

There is a local feeling connected with this occasion, too strong to be
resisted; a sort of _genius of the place_, which inspires and awes
us. We feel that we are on the spot where the first scene of our history
was laid; where the hearths and altars of New England were first placed;
where Christianity, and civilization, and letters made their first
lodgement, in a vast extent of country, covered with a wilderness, and
peopled by roving barbarians. We are here, at the season of the year at
which the event took place. The imagination irresistibly and rapidly draws
around us the principal features and the leading characters in the
original scene. We cast our eyes abroad on the ocean, and we see where the
little bark, with the interesting group upon its deck, made its slow
progress to the shore. We look around us, and behold the hills and
promontories where the anxious eyes of our fathers first saw the places of
habitation and of rest. We feel the cold which benumbed, and listen to the
winds which pierced them. Beneath us is the Rock, on which New England
received the feet of the Pilgrims. We seem even to behold them, as they
struggle with the elements, and, with toilsome efforts, gain the shore. We
listen to the chiefs in council; we see the unexampled exhibition of
female fortitude and resignation; we hear the whisperings of youthful
impatience, and we see, what a painter of our own has also represented by
his pencil [1], chilled and shivering childhood, houseless, but for a
mother's arms, couchless, but for a mother's breast, till our own blood
almost freezes. The mild dignity of Carver and of Bradford; the decisive
and soldier-like air and manner of Standish; the devout Brewster; the
enterprising Allerton; [2] the general firmness and thoughtfulness of the
whole band; their conscious joy for dangers escaped; their deep solicitude
about dangers to come; their trust in Heaven; their high religious faith,
full of confidence and anticipation; all of these seem to belong to this
place, and to be present upon this occasion, to fill us with reverence and
admiration.

The settlement of New England by the colony which landed here on the
twenty-second [3] of December, sixteen hundred and twenty, although not
the first European establishment in what now constitutes the United
States, was yet so peculiar in its causes and character, and has been
followed and must still be followed by such consequences, as to give it a
high claim to lasting commemoration. On these causes and consequences,
more than on its immediately attendant circumstances, its importance, as
an historical event, depends. Great actions and striking occurrences,
having excited a temporary admiration, often pass away and are forgotten,
because they leave no lasting results, affecting the prosperity and
happiness of communities. Such is frequently the fortune of the most
brilliant military achievements. Of the ten thousand battles which have
been fought, of all the fields fertilized with carnage, of the banners
which have been bathed in blood, of the warriors who have hoped that they
had risen from the field of conquest to a glory as bright and as durable
as the stars, how few that continue long to interest mankind! The victory
of yesterday is reversed by the defeat of to-day; the star of military
glory, rising like a meteor, like a meteor has fallen; disgrace and
disaster hang on the heels of conquest and renown; victor and vanquished
presently pass away to oblivion, and the world goes on in its course, with
the loss only of so many lives and so much treasure.

But if this be frequently, or generally, the fortune of military
achievements, it is not always so. There are enterprises, military as well
as civil, which sometimes check the current of events, give a new turn to
human affairs, and transmit their consequences through ages. We see their
importance in their results, and call them great, because great things
follow. There have been battles which have fixed the fate of nations.
These come down to us in history with a solid and permanent interest, not
created by a display of glittering armor, the rush of adverse battalions,
the sinking and rising of pennons, the flight, the pursuit, and the
victory; but by their effect in advancing or retarding human knowledge, in
overthrowing or establishing despotism, in extending or destroying human
happiness. When the traveller pauses on the plain of Marathon, what are
the emotions which most strongly agitate his breast? What is that glorious
recollection, which thrills through his frame, and suffuses his eyes? Not,
I imagine, that Grecian skill and Grecian valor were here most signally
displayed; but that Greece herself was saved. It is because to this spot,
and to the event which has rendered it immortal, he refers all the
succeeding glories of the republic. It is because, if that day had gone
otherwise, Greece had perished. It is because he perceives that her
philosophers and orators, her poets and painters, her sculptors and
architects, her governments and free institutions, point backward to
Marathon, and that their future existence seems to have been suspended on
the contingency, whether the Persian or the Grecian banner should wave
victorious in the beams of that day's setting sun. And, as his imagination
kindles at the retrospect, he is transported back to the interesting
moment; he counts the fearful odds of the contending hosts; his interest
for the result overwhelms him; he trembles, as if it were still uncertain,
and seems to doubt whether he may consider Socrates and Plato,
Demosthenes, Sophocles, and Phidias, as secure, yet, to himself and to the
world.

"If we conquer," said the Athenian commander on the approach of that
decisive day, "if we conquer, we shall make Athens the greatest city of
Greece." [4] A prophecy how well fulfilled! "If God prosper us," might
have been the more appropriate language of our fathers, when they landed
upon this Rock, "if God prosper us, we shall here begin a work which shall
last for ages; we shall plant here a new society, in the principles of the
fullest liberty and the purest religion; we shall subdue this wilderness
which is before us; we shall fill this region of the great continent,
which stretches almost from pole to pole, with civilization and
Christianity; the temples of the true God shall rise, where now ascends
the smoke of idolatrous sacrifice; fields and gardens, the flowers of
summer, and the waving and golden harvest of autumn, shall spread over a
thousand hills, and stretch along a thousand valleys, never yet, since the
creation, reclaimed to the use of civilized man. We shall whiten this
coast with the canvas of a prosperous commerce; we shall stud the long and
winding shore with a hundred cities. That which we sow in weakness shall
be raised in strength. From our sincere, but houseless worship, there
shall spring splendid temples to record God's goodness; from the
simplicity of our social union, there shall arise wise and politic
constitutions of government, full of the liberty which we ourselves bring
and breathe; from our zeal for learning, institutions shall spring which
shall scatter the