The Life of John Marshall Volume IV Part 30

[670] Farrar, 231; 65 N.H. 641.

[671] Farrar, 232; 65 N.H. 642.

[672] Farrar, 235.

[673] _Ib._

[674] Webster was then thirty-six years of age.

[675] Goodrich's statement in Brown: _Works of Rufus Choate: With a Memoir of his Life_, I, 515.

[676] They were Rufus Greene Amory and George Black of Boston, David B.

Ogden and "a Mr. Baldwin from New York," Thomas Sergeant and Charles J.

Ingersoll of Philadelphia, John Wickham, Philip Norborne, Nicholas and Benjamin Watkins Leigh of Virginia, and John McPherson Berrien of Georgia. (Webster to Sullivan, Feb. 27, 1818, _Priv. Corres_.: Webster, I, 273.)

[677] Brown, I, 515. Story makes no comment on the argument of the Dartmouth case--a pretty sure sign that it attracted little attention in Was.h.i.+ngton. Contrast Story's silence as to this argument with his vivid description of that of M'Culloch _vs._ Maryland (_infra_, chap. VI).

Goodrich attributes the scant attendance to the fact that the court sat "in a mean apartment of moderate size"; but that circ.u.mstance did not keep women as well as men from thronging the room when a notable case was to be heard or a celebrated lawyer was to speak. (See description of the argument of the case of the Nereid, _supra_, 133-34.)

[678] For example, in M'Culloch _vs._ Maryland, Luther Martin spoke for three days. (Webster to Smith, Feb. 28, 1819, Van Tyne, 80; and see _infra_, chap, VI.)

[679] See vol. III, chap, IV, of this work.

[680] The College Trustees at first thought of employing Luther Martin to a.s.sist Webster in the Supreme Court (Brown to Kirkland, Nov. 15, 1817, as quoted by Warren in _American Law Review_, XLVI, 665). It is possible that Hopkinson was chosen instead, upon the advice of Webster, who kept himself well informed of the estimate placed by Marshall and the a.s.sociate Justices on lawyers who appeared before them. Marshall liked and admired Hopkinson, had been his personal friend for years, and often wrote him. When Peters died in 1828, Marshall secured the appointment of Hopkinson in his place. (Marshall to Hopkinson, March 16, 1827, and same to same [no date, but during 1828], Hopkinson MSS.)

[681] It was considered to be a "needless expense" to send the original counsel, Sullivan and Bartlett, to Was.h.i.+ngton. (Lord, 140.)

[682] Webster to McGaw, July 27, 1818, Van Tyne, 77.

[683] s.h.i.+rley, 229-32. The fact that Holmes was employed plainly shows the influence of "practical politics" on the State officials and the Trustees of the University. The Board voted December 31, 1817, "to take charge of the case." Benjamin Hale, one of the new Trustees, was commissioned to secure other counsel if Holmes did not accept.

Apparently Woodward was Holmes's champion: "I have thought him extremely ready ... [a] good lawyer, inferior to D. W. only in point of oratory."

(Woodward to Hall, Jan. 18, 1818, Lord, 139-40.) Hardly had Hale reached Was.h.i.+ngton than he wrote Woodward: "Were you sensible of the low ebb of Mr. Holmes' reputation here, you would ... be unwilling to trust the cause with him." (Hale to Woodward, Feb. 15, 1818, _ib._ 139.)

[684] "It is late at night--the f.a.g-end of a hard day's work. My eyes, hand and mind all tired.... I have been up till midnight, at work, every night, and still have my hands full.... I am now worn out ... extremely fatigued.... The Supreme Court is approaching. It will half kill you to hear that it will find me unprepared." (Wirt to Carr, Jan. 21, 1818, Kennedy, II, 73-74.) Wirt had just become Attorney-General. Apparently he found the office in very bad condition. The task of putting it in order burdened him. He was compelled to do much that was not "properly [his] duty." (_Ib._ 73.) His fee in the Dartmouth College case did not exceed $500. (Hale to Plumer, Jan. 1818, Lord, 140.)

[685] "He seemed to treat this case as if his side could furnish nothing but declamation." (Webster to Mason, March 13, 1818, _Priv. Corres._: Webster, I, 275.)

[686] Farrar, 241; 65 N.H. 596; 4 Wheaton, 534; and see Curtis, I, 163-66.

[687] Farrar, 242-44; 65 N.H. 597-98; 4 Wheaton, 556-57.

[688] Farrar, 244; 65 N.H. 598-99; 4 Wheaton, 558-59.

[689] Farrar, 248; 65 N.H. 600-01; 4 Wheaton, 563-64.

[690] Farrar, 255-56; 65 N.H. 605-06; 4 Wheaton, 567-68.

[691] Farrar, 258-59; 65 N.H. 607-08; 4 Wheaton, 571-72.

[692] Farrar, 260-61; 65 N.H. 609; 4 Wheaton, 571.

[693] In Terrett _vs._ Taylor, 9 Cranch, 45 _et seq._ Story delivered the unanimous opinion of the Supreme Court in this case. This fact was well known at the time of the pa.s.sage of the College Acts; and, in view of it, there is difficulty in understanding how Story could have been expected to support the New Hamps.h.i.+re legislation. (See _infra_, 257.)

[694] Farrar, 262; 65 N.H. 609-10; 4 Wheaton, 574-75.

[695] Farrar, 273; 65 N.H. 617; 4 Wheaton, 588.

[696] Farrar, 246-47; 65 N.H. 598-600; 4 Wheaton, 557-59.

[697] See vol. III, chap, X, of this work.

[698] Farrar, 273-74; 65 N.H. 618-19; 4 Wheaton, 591-92.

[699] _Supra_, 223.

[700] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591.

[701] In Terrett _vs._ Taylor, see _supra_, footnote to 243.

[702] Farrar, 275; 65 N.H. 619; 4 Wheaton, 591. (Italics the author's.) It will be observed that Webster puts the emphasis upon "natural justice" and "fundamental laws" rather than upon the Const.i.tutional point.

[703] Farrar, 276; 65 N.H. 619-20; 4 Wheaton, 592.

[704] Terrett _vs._ Taylor.

[705] Farrar, 277; 65 N.H. 620; 4 Wheaton, 592.

[706] Farrar, 280; 65 N.H. 622. The two paragraphs containing these statements of Webster are omitted in _Wheaton's Reports_.

[707] Farrar, 282-83; 65 N.H. 624; 4 Wheaton, 599.

[708] Brown, I, 516.

[709] _Ib._ 516-17. This scene, the movement and color of which grew in dignity and vividness through the innumerable repet.i.tions of it, caught the popular fancy. Speeches, poems, articles, were written about the incident. It became one of the chief sources from which the idolaters of Webster drew endless adulation of that great man.

[710] See Brown, I, 517; Curtis, I, 169-71.

Chauncey Allen Goodrich was in his twenty-eighth year when he heard Webster's argument. He was sixty-three when he gave Choate the description which the latter made famous in his "Eulogy of Webster."

[711] Compare their arguments with Webster's. See Farrar 28-70; 104-61; 238-84.

[712] "Your notes I found to contain the whole matter. They saved me great labor; but that was not the best part of their service; they put me in the right path.... The only new aspect of the argument was produced by going into cases to prove these ideas, which indeed lie at the very bottom of your argument." (Webster to Smith, March 14, 1818, _Priv. Corres._: Webster, I, 276-77; and see Webster to Mason, March 22, 1818, _ib._ 278.)

A year later, after the case had been decided, when the question of publis.h.i.+ng Farrar's _Report_ of all the arguments and opinions in the Dartmouth College case was under consideration, Webster wrote Mason: "My own interest would be promoted by _preventing_ the Book. I shall strut well enough in the Was.h.i.+ngton Report, & if the 'Book' should not be published, the world would not know where I borrowed my plumes--But I am still inclined to have the Book--One reason is, that you & Judge Smith may have the credit which belongs to you." (Webster to Mason, April 10, 1819, Van Tyne, 80.)

Farrar's _Report_ was published in August, 1819. It contains the pleadings and special verdict, the arguments of counsel, opinions, and the judgments in the State and National courts, together with valuable appendices. The Farrar _Report_ is indispensable to those who wish to understand this celebrated case from the purely legal point of view.

[713] Story to Mason, Oct. 6, 1819, Story, I, 323.