The argument ended [runs the tale], Mr. Webster stood for some moments silent before the Court, while every eye was fixed intently upon him. At length, addressing the Chief Justice, he proceeded thus: “This, sir, is my case. It is the case … of every college in our land.… Sir, you may destroy this little institution.… 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—”
Here, the feelings which he had thus far succeeded in keeping down, broke forth, his lips quivered; his firm cheeks trembled with emotion, his eyes filled with tears.… The court-room during these two or three minutes presented an extraordinary spectacle. Chief Justice Marshall, with his tall and gaunt figure bent over, as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and his eyes suffused with tears; Mr. Justice Washington at his side, with small and emaciated frame, and countenance more like marble than I ever saw on any other human being.… There was not one among the strong-minded men of that assembly who could think it unmanly to weep, when he saw standing before him the man who had made such an argument, melted into the tenderness of a child.
Mr. Webster had now recovered his composure, and, fixing his keen eyes on Chief Justice Marshall, said in that deep tone with which he sometimes thrilled the heart of an audience: “Sir, I know not how others may feel … but for myself, when I see my Alma Mater surrounded, like Cæsar in the Senate house, by those who are reiterating stab after stab, I would not, for my right hand, have her turn to me and say, Et tu quoque mi fili! And thou, too, my son!”
Whether this extraordinary scene, first described thirty-four years afterward by a putative witness of it, ever really occurred or not, it is today impossible to say. ¹ But at least it would be an error to attribute to it great importance. From the same source we have it that at Exeter, too, Webster had made the judges weep—yet they had gone out and decided against him. Judges do not always decide the way they weep!
¹ Professor Goodrich of Yale, who is responsible for the story, communicated it to Rufus Choate in 1853. It next appears on Goodrich’s authority in Curtis’s Webster, vol. II, pp. 169-71.
Of the strictly legal part of his argument Webster himself has left us a synopsis. Fully three-quarters of it dealt with the questions which had been discussed by Mason before the State Supreme Court under the New Hampshire Constitution and was largely irrelevant to the great point at issue at Washington. Joseph Hopkinson, who was now associated with Webster, contributed far more to the content of Marshall’s opinion; yet he, too, left one important question entirely to the Chief Justice’s ingenuity, as will be indicated shortly. Fortunately for the College its opponents were ill prepared to take advantage of the vulnerable points of its defense. For some unknown reason, Bartlett and Sullivan, who had carried the day at Exeter, had now given place to William Wirt and John Holmes. Of these the former had just been made Attorney-General of the United States and had no time to give to the case—indeed he admitted that “he had hardly thought of it till it was called on.” As for Holmes, he was a “kaleidoscopic politician” and barroom wit, best known to contemporaries as “the noisy eulogist and reputed protégé of Jefferson.” A remarkable strategy that, which stood such a person up before John Marshall to plead the right of state Legislatures to dictate the fortunes of liberal institutions!
The arguments were concluded on Thursday, the 12th of March. The next morning the Chief Justice announced that the Court had conferred, that there were different opinions, that some of the judges had not arrived at a conclusion, and that consequently the cause must be continued. Webster, however, who was apt to be much in “the know” of such matters, ventured to place the different judges thus: “The Chief and Washington,” he wrote his former colleague Smith, “I have no doubt, are with us. Duvall and Todd perhaps against us; the other three holding up—I cannot much doubt but that Story will be with us in the end, and I think we have much more than an even chance for one of the others.”
The friends of the College set promptly to work to bring over the wavering judges. To their dismay they learned that Chancellor James Kent of New York, whose views were known to have great weight with Justices Johnson and Livingston, had expressed himself as convinced by Chief Justice Richardson’s opinion that Dartmouth College was a public corporation. Fortunately, however, a little ransacking of the records brought to light an opinion which Kent and Livingston had both signed as early as 1803, when they were members of the New York Council of Revision, and which took the ground that a then pending measure in the New York Legislature for altering the Charter of New York City violated “due process of law.” At the same time, Charles Marsh, a friend of both Kent and Webster, brought to the attention of the former Webster’s argument before Marshall at Washington in March, 1818. Then came a series of conferences at Albany in which Chancellor Kent, Justice Johnson, President Brown of Dartmouth College, Governor Clinton, and others participated. As a result, the Chancellor owned himself converted to the idea that the College was a private institution.
The new term of court opened on Monday, February 1, 1819. William Pinkney, who in vacation had accepted a retainer from the backers of Woodward, that is, of the State, took his stand on the second day near the Chief Justice, expecting to move for a reargument. Marshall, “turning his blind eye” to the distinguished Marylander, announced that the Court had reached a decision, plucked from his sleeve an eighteen folio manuscript opinion, and began reading it. He held that the College was a “private eleemosynary institution”; that its charter was the outgrowth of a contract between the original donors and the Crown, that the trustees represented the interest of the donors, and that the terms of the Constitution were broad enough to cover and protect this representative interest. The last was the only point on which he confessed a real difficulty. The primary purpose of the constitutional clause, he owned, was to protect “contracts the parties to which have a vested beneficial interest” in them, whereas the trustees had no such interest at stake. But, said he, the case is within the words of the rule, and “must be within its operation likewise, unless there be something in the literal construction” obviously at war with the spirit of the Constitution, which was far from the fact. For, he continued, “it requires no very critical examination of the human mind to enable us to determine that one great inducement to these gifts is the conviction felt by the giver that the disposition he makes of them is immutable. All such gifts are made in the pleasing, perhaps delusive hope, that the charity will flow forever in the channel which the givers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine that the framers of our Constitution were strangers to it, and that, feeling the necessity and policy of giving permanence and security to contracts” generally, they yet deemed it desirable to leave this sort of contract subject to legislative interference. Such is Marshall’s answer to Jefferson’s outburst against “the dead hand.”
Characteristically, Marshall nowhere cites Fletcher vs. Peck in his opinion, but he builds on the construction there made of the “obligation of contracts” clause as clearly as do his associates, Story and Washington, who cite it again and again in their concurring opinion. Thus he concedes that the British Parliament, in consequence of its unlimited power, might at any time before the Revolution have annulled the charter of the College and so have disappointed the hopes of the donors; but, he adds, “the perfidy of the transaction would have been universally acknowledged.” Later on, he further admits that at the time of the Revolution the people of New Hampshire succeeded to “the transcendent power of Parliament,” as well as to that of the King, with the result that a repeal of the charter before 1789 could have been contested only under the State Constitution. “But the Constitution of the United States,” he continues, “has imposed this additional limitation, that the Legislature of a State shall pass no act ‘impairing the obligation of contracts.’” In short, as in Fletcher vs. Peck, what was originally a moral obligation is regarded as having been lifted by the Constitution into the full status of a legal one, and this time without any assistance from “the general principles of our free institutions.”
How is the decision of the Supreme Court in the case of Dartmouth College vs. Woodward to be assessed today? Logically the basis of it was repudiated by the Court itself within a decade, albeit the rule it lays down remained unaffected. Historically it is equally without basis, for the intention of the obligation of contracts clause, as the evidence amply shows, was to protect private executory contracts, and especially contracts of debt. ¹ In actual practice, on the other hand, the decision produced one considerable benefit: in the words of a contemporary critic, it put private institutions of learning and charity out of the reach of “legislative despotism and party violence.”
¹ Much of the evidence is readily traceable through the Index to Max Farrand’s Records of the Federal Convention.