Even if the royal charter is a contract, it does not, cannot forever, prevent the Legislature from modifying it for the general good (as, for instance, by increasing the number of trustees) "however strongly the publick interest might require" this to be done. "Such a contract, in relation to a publick institution, would ... be absurd and repugnant to the principles of all government. The king had no power to make such a contract," and neither has the Legislature. If the act of June 27 had provided that "the twenty-one trustees should forever have the exclusive controul of this institution, and that no future legislature should add to their number," it would be as invalid as an act that the "number of judges of this court should never be augmented."[670]
It is against "sound policy," Richardson affirmed, to place the great institutions of learning "within the absolute controul of a few individuals, and out of the controul of the sovereign power.... It is a matter of too great moment, too intimately connected with the publick welfare and prosperity, to be thus entrusted in the hands of a few."[671] So the New Hampshire court adjudged that the College Acts were valid and binding upon the old Trustees "without acceptance thereof, or assent thereto by them." And the court specifically declared that such legislation was "not repugnant to the constitution of the United States."[672]
Immediately the case was taken to the Supreme Court by writ of error, which assigned the violation of the National Constitution by the College Acts as the ground of appeal.[673] On March 10, 1818, Webster opened the argument before a full bench.[674] Only a few auditors were present, and these were lawyers[675] who were in Washington to argue other cases.[676] Stirred as New Hampshire and the New England States were by the College controversy, the remainder of the country appears to have taken no interest in it. Indeed, west and south of the Hudson, the people seem to have known nothing of the quarrel. The Capital was either ignorant or indifferent. Moreover, Webster had not, as yet, made that great reputation, in Washington, as a lawyer as well as an orator which, later, became his peculiar crown of glory. At any rate, the public was not drawn to the court-room on that occasion.[677]
The argument was one of the shortest ever made in a notable case before the Supreme Court during the twenty-eight years of its existence up to this time. Not three full days were consumed by counsel on both sides—a space of time frequently occupied by a single speaker in hearings of important causes.[678]
In talents, bearing, and preparation the attorneys for the College were as much superior to those for the University as, in the Chase impeachment trial, the counsel for the defense were stronger than the House managers.[679] Indeed, the similarity of the arguments in the Chase trial and in the Dartmouth case, in respect to the strength and preparation of opposing counsel, is notable; and in both cases the victory came to the side having the abler and better-prepared advocates. With Webster for the College was Joseph Hopkinson of Philadelphia, who had so distinguished himself in the Chase trial exactly thirteen years earlier. Hopkinson was now in his forty-ninth year, the unrivaled leader of the Philadelphia bar and one of the most accomplished of American lawyers.[680]
It would seem incredible that sensible men could have selected such counsel to argue serious questions before any court as those who represented the University in this vitally important controversy. The obvious explanation is that the State officials and the University Trustees were so certain of winning that they did not consider the employment of powerful and expensive attorneys to be necessary.[681] In fact, the belief was general that the contest was practically over and that the appeal of the College to the Supreme Court was the pursuit of a feeble and forlorn hope.
Even after his powerful and impressive argument in the Supreme Court, Webster declared that he had never allowed himself "to indulge any great hopes of success."[682] It was not unnatural, then, that the State and the University should neglect to employ adequate counsel.
John Holmes, a Representative in Congress from that part of Massachusetts which afterward became the State of Maine, appeared for the University. He was notoriously unfitted to argue a legal question of any weight in any court. He was a busy, agile, talkative politician of the roustabout, hail-fellow-well-met variety, "a power-on-the-stump" orator, gifted with cheap wit and tawdry eloquence.[683]
Associated with Holmes was William Wirt, recently appointed Attorney-General. At that particular time Wirt was all but crushed by overwork, and without either leisure or strength to master the case and prepare an argument.[684] Never in Wirt's life did he appear in any case so poorly equipped as he was in the Dartmouth controversy.[685]
Webster's address was a combination of the arguments made by Mason and Smith in the New Hampshire court. Although the only question before the Supreme Court was whether the College Acts violated the contract clause of the Constitution, Webster gave comparatively scant attention to it; or, perhaps it might be said that most of his argument was devoted to laying the foundation for his brief reasoning on the main question. In laying this foundation, Webster cleverly brought before the court his version of the history of the College, the situation in New Hampshire, the plight of institutions like Dartmouth, if the College Acts were permitted to stand.