Chapter 28

Fellow-citizens, the great question is now before the country. If, with the experience of the past, the American people think proper to confirm power in the hands which now hold it, and thereby sanction the leading policy of the administration, it will be your duty and mine to bow, with submission, to the public will; but, for myself, I shall not believe it possible for me to be of service to the country, in any department of public life. I shall look on, with no less love of country than ever, but with fearful forebodings of what may be near at hand.

But I do not at all expect that result. I fully believe the change is coming. If we all do our duty, we shall restore the government to its former policy, and the country to its former prosperity. And let us here, to-day, fellow-citizens, with full resolution and patriotic purpose of heart, give and take pledges, that, until this great controversy be ended, our time, our talents, our efforts, are all due, and shall all be faithfully given, to OUR COUNTRY.

Mr. Justice Story.

Your solemn announcement, Mr. Chief Justice, has confirmed the sad intelligence which had already reached us, through the public channels of information, and deeply afflicted us all.

Joseph Story, one of the Associate Justices of the Supreme Court of the United States, and for many years the presiding judge of this Circuit, died on Wednesday evening last, at his house in Cambridge, wanting only a few days for the completion of the sixty-sixth year of his age.

This most mournful and lamentable event has called together the whole Bar of Suffolk, and all connected with the courts of law or the profession. It has brought you, Mr. Chief Justice, and your associates of the Bench of the Supreme Court of Massachusetts, into the midst of us; and you have done us the honor, out of respect to the occasion, to consent to preside over us, while we deliberate on what is due, as well to our own afflicted and smitten feelings, as to the exalted character and eminent distinction of the deceased judge. The occasion has drawn from his retirement, also, that venerable man, whom we all so much respect and honor, (Judge Davis,) who was, for thirty years, the associate of the deceased upon the same Bench. It has called hither another judicial personage, now in retirement, (Judge Putnam,) but long an ornament of that Bench of which you are now the head, and whose marked good fortune it is to have been the professional teacher of Mr. Justice Story, and the director of his early studies. He also is present to whom this blow comes near; I mean, the learned judge (Judge Sprague) from whose side it has struck away a friend and a highly venerated official associate. The members of the Law School at Cambridge, to which the deceased was so much attached, and who returned that attachment with all the ingenuousness and enthusiasm of educated and ardent youthful minds, are here also, to manifest their sense of their own severe deprivation, as well as their admiration of the bright and shining professional example which they have so loved to contemplate,--an example, let me say to them, and let me say to all, as a solace in the midst of their sorrows, which death hath not touched and which time cannot obscure.

Mr. Chief Justice, one sentiment pervades us all. It is that of the most profound and penetrating grief, mixed, nevertheless, with an assured conviction, that the great man whom we deplore is yet with us and in the midst of us. He hath not wholly died. He lives in the affections of friends and kindred, and in the high regard of the community. He lives in our remembrance of his social virtues, his warm and steady friendships, and the vivacity and richness of his conversation. He lives, and will live still more permanently, by his words of written wisdom, by the results of his vast researches and attainments, by his imperishable legal judgments, and by those juridical disquisitions which have stamped his name, all over the civilized world, with the character of a commanding authority. "Vivit, enim, vivetque semper; atque etiam latius in memoria hominum et sermone versabitur, postquam ab oculis recessit."

Mr. Chief Justice, there are consolations which arise to mitigate our loss, and shed the influence of resignation over unfeigned and heart-felt sorrow. We are all penetrated with gratitude to God that the deceased lived so long; that he did so much for himself, his friends, the country, and the world; that his lamp went out, at last, without unsteadiness or flickering. He continued to exercise every power of his mind without dimness or obscuration, and every affection of his heart with no abatement of energy or warmth, till death drew an impenetrable veil between us and him. Indeed, he seems to us now, as in truth he is, not extinguished or ceasing to be, but only withdrawn; as the clear sun goes down at its setting, not darkened, but only no longer seen.

This calamity, Mr. Chief Justice, is not confined to the bar or the courts of this Commonwealth. It will be felt by every bar throughout the land, by every court, and indeed by every intelligent and well informed man in or out of the profession. It will be felt still more widely, for his reputation had a still wider range. In the High Court of Parliament, in every tribunal in Westminster Hall, in the judicatories of Paris and Berlin, of Stockholm and St. Petersburg, in the learned universities of Germany, Italy, and Spain, by every eminent jurist in the civilized world, it will be acknowledged that a great luminary has fallen from the firmament of public jurisprudence.[1]

Sir, there is no purer pride of country than that in which we may indulge when we see America paying back the great debt of civilization, learning, and science to Europe. In this high return of light for light and mind for mind, in this august reckoning and accounting between the intellects of nations, Joseph Story was destined by Providence to act, and did act, an important part. Acknowledging, as we all acknowledge, our obligations to the original sources of English law, as well as of civil liberty, we have seen in our generation copious and salutary streams turning and running backward, replenishing their original fountains, and giving a fresher and a brighter green to the fields of English jurisprudence. By a sort of reversed hereditary transmission, the mother, without envy or humiliation, acknowledges that she has received a valuable and cherished inheritance from the daughter. The profession in England admits with frankness and candor, and with no feeling but that of respect and admiration, that he whose voice we have so recently heard within these walls, but shall now hear no more, was of all men who have yet appeared, most fitted by the comprehensiveness of his mind, and the vast extent and accuracy of his attainments, to compare the codes of nations, to trace their differences to difference of origin, climate, or religious or political institutions, and to exhibit, nevertheless, their concurrence in those great principles upon which the system of human civilization rests.

Justice, Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name, and fame, and character, with that which is and must be as durable as the frame of human society.

All know, Mr. Chief Justice, the pure love of country which animated the deceased, and the zeal, as well as the talent, with which he explained and defended her institutions. His work on the Constitution of the United States is one of his most eminently successful labors. But all his writings, and all his judgments, all his opinions, and the whole influence of his character, public and private, leaned strongly and always to the support of sound principles, to the restraint of illegal power, and to the discouragement and rebuke of licentious and disorganizing sentiments. "Ad rempublicam firmandam, et ad stabiliendas vires, et sanandum populum, omnis ejus pergebat institutio."

But this is not the occasion, Sir, nor is it for me to consider and discuss at length the character and merits of Mr. Justice Story, as a writer or a judge. The performance of that duty, with which this Bar will no doubt charge itself, must be deferred to another opportunity, and will be committed to abler hands. But in the homage paid to his memory, one part may come with peculiar propriety and emphasis from ourselves. We have known him in private life. We have seen him descend from the bench, and mingle in our friendly circles. We have known his manner of life, from his youth up. We can bear witness to the strict uprightness and purity of his character, his simplicity and unostentatious habits, the ease and affability of his intercourse, his remarkable vivacity amidst severe labors, the cheerful and animating tones of his conversation, and his fast fidelity to friends. Some of us, also, can testify to his large and liberal charities, not ostentatious or casual, but systematic and silent, --dispensed almost without showing the hand, and falling and distilling comfort and happiness, like the dews of heaven. But we can testify, also, that in all his pursuits and employments, in all his recreations, in all his commerce with the world, and in his intercourse with the circle of his friends, the predominance of his judicial character was manifest. He never forgot the ermine which he wore. The judge, the judge, the useful and distinguished judge, was the great picture which he kept constantly before his eyes, and to a resemblance of which all his efforts, all his thoughts, all his life, were devoted. We may go the world over, without finding a man who shall present a more striking realization of the beautiful conception of D'Aguesseau: "C'est en vain que l'on cherche a distinguer en lui la personne privée et la personne publique; un même esprit les anime, un même objet les réunit; l'homme, le père de famille, le citoyen, tout est en lui consacré à la gloire du magistrat."

Mr. Chief Justice, one may live as a conqueror, a king, or a magistrate; but he must die as a man. The bed of death brings every human being to his pure individuality; to the intense contemplation of that deepest and most solemn of all relations, the relation between the creature and his Creator. Here it is that fame and renown cannot assist us; that all external things must fail to aid us; that even friends, affection, and human love and devotedness, cannot succor us. This relation, the true foundation of all duty, a relation perceived and felt by conscience and confirmed by revelation, our illustrious friend, now deceased, always acknowledged.

He reverenced the Scriptures of truth, honored the pure morality which they teach, and clung to the hopes of future life which they impart. He beheld enough in nature, in himself, and in all that can be known of things seen, to feel assured that there is a Supreme Power, without whose providence not a sparrow falleth to the ground. To this gracious being he entrusted himself for time and for eternity; and the last words of his lips ever heard by mortal ears were a fervent supplication to his Maker to take him to himself. [2]

Biographical.

First Period: Law and Politics in New Hampshire.

1782 Born at Salisbury, New Hampshire, January 18. Early Education. 1797 Enters Dartmouth College. 1805 Admitted to the Bar, 1805. Practises in Boscawen. 1807 Removes to Portsmouth, New Hampshire. 1813 Elected to Congress from Portsmouth. 1814-15 The Hartford Convention.

Second Period: Leader at the Bar and in the Forum.

1816 Removes to Boston, Massachusetts. 1817 "The Defence of the Kennistons." 1818 "The Dartmouth College Case." 1820 Massachusetts Convention.

Third Period: Expounder and Defender of the Constitution.

1827 Elected to the Senate from Massachusetts. 1830 "The Reply to Hayne." 1833 "The Constitution not a Compact between Sovereign States." 1833-34 Removal of the Deposits from the United States Bank. Rise of the Whig Party. 1835 Nominated to the Presidency by the Whigs of Massachusetts. 1837 Reception in New York. 1839 Visits England. 1840 Presidential Canvass. 1840-43 Secretary of State. Ashburton Treaty. Resigns the Department of State. 1844 Re-elected to the Senate from Massachusetts. 1845 "Eulogy on Justice Story." Annexation of Texas. 1846 Banquet in Philadelphia. 1850 Seventh of March Speech. Secretary of State under President Fillmore. 1852 Public Reception in Boston. Last Illness and Death.

Notes.

_DEFENCE OF THE KENNISTONS_

April, 1817.

Mr. Webster had been elected to Congress from Portsmouth, New Hampshire, in 1813, and his term expired in March, 1816. In August of that year (1816) he removed his family to Boston, and decided to devote himself exclusively to the profession of the law. He had won a high position both in law and politics in New Hampshire. The change of residence marks an era in the life of Mr. Webster. Mr. Lodge says that there is a tradition that the worthies of the Puritan city were disposed at first to treat the newcomer somewhat cavalierly, but that they soon learned that it was worse than useless to attempt such a course with a man whose magnificent physical and intellectual bearing won the admiration of all who met him.

He now began a career of great professional distinction, and took a place at the Boston bar even more conspicuous than his friends had anticipated--that of an equal of the most famous of its members. His cases called him before the Massachusetts Supreme Court, the Circuit Court of the United States, and the United States Supreme Court. Among the first cases which came to him on his retirement from political life was the Goodridge Robbery Case, the argument in which was addressed to the jury at the term of the Supreme Judicial Court of Massachusetts held at Ipswich in April, 1817.

The singularly dramatic story of the prosecutor, the almost universal belief in the guilt of the accused, both by the public and by the members of the Essex bar, and the impossibility of accounting for the motive (self-robbery) assumed by the defence, make this exhibition of Mr. Webster's "acute, penetrating, and terrifying" power of cross-examination,--by which such a complicated and ingenious story was unravelled,--one of the most memorable in the history of the

Massachusetts bar. It is a model of close, simple, unadorned argument, adapted to the minds of the jurymen. In it there are no attempts to carry the jury off their feet by lofty appeals to their sense of justice, nor to cover the weak points in the case by fine oratory. The oft-repeated, "It is for the jury to determine," illustrates Mr. Webster's respect for the common sense of the jurymen before him and his reliance upon evidence to win the case. The following are the facts relating to the case:--Major Goodridge of Bangor, Maine, professed to have been robbed of a large sum of money at nine o'clock on the night of Dec. 19, 1816, while travelling on horseback, near the bridge between Exeter and Newburyport. In the encounter with the robbers he received a pistol wound in his left hand; he was then dragged from his horse into a field, beaten until insensible, and robbed. On recovering, he procured the assistance of several persons, and with a lantern returned to the place of the robbery and found his watch and some papers. The next day he went to Newburyport, and remained ill for several weeks, suffering from delirium caused by the shock. When he recovered he set about the discovery of the robbers. His story seemed so probable that he had the sympathy of all the country-folk. He at once charged with the crime Levi and Laban Kenniston, two poor men, who lived in an obscure part of the town of Newmarket, New Hampshire, and finding some of his money (which he had previously marked) in their cellar, he had them arrested, and held for trial. By and by a few of the people began to doubt the story of Goodridge; this led him to renewed efforts, and he arrested the toll gatherer, Mr. Pearson, in whose house, by the aid of a conjurer, he found some of his money. On examination by the magistrate, Pearson was discharged. It now became necessary to find some accomplice of the Kennistons, and he arrested one Taber of Boston, whom he had seen (he said) on his way up, and from whom he had obtained his information against the Kennistons. In Taber's house was found some of the money; he was accordingly bound over for trial with the Kennistons. As none of these men lived near the scene of the robbery, Mr. Jackman, who, soon after the robbery, had gone to New York, was arrested, his house searched, and some of the money found in the garret. The guilt of these men seemed so conclusive that no eminent member of the Essex bar would undertake their defence. A few of those who mistrusted Goodridge determined to send to Suffolk County for counsel.

Mr. Webster had been well known in New Hampshire, and his services were at once secured; without having time to examine any of the details of the case--as he had arrived at Ipswich on the night before the trial--he at once undertook the defence of the Kennistons and secured their acquittal. The indictment against Taber was _nol prossed_. Later, he defended Jackman and secured his acquittal. Mr. Pearson brought action against Goodridge for malicious prosecution, and was awarded $2000, but Goodridge took the poor debtor's oath and left the State.

Cf. Curtis's _Life of Webster_, Ch. VIII.; Everett's _Memoir of Webster_, in Vol. I. of Webster's Works.

* * * * *

_THE DARTMOUTH COLLEGE CASE_.

March, 1818.

Within a year after the defence of the Kennistons, Mr. Webster was called upon to defend his Alma Mater against the acts of the Legislature of his native State.

The case was one of the most interesting ever argued before the Supreme Court of the United States, because there were involved in it certain constitutional questions which had never been tested. "Mr. Webster by his management of this case," says Edward Everett, "took the lead in establishing what might almost be called a new school of constitutional law." Not until within a few years has the complete history of the case been accessible. In 1879, a volume of "Dartmouth College Causes" was published by Mr. John M. Shirley, and in it we have, for the first time, a clear statement of all the points relating to the origin and development of the case.

Dartmouth College was originally a charity school, and was founded by Eleazor Wheelock at Lebanon, Connecticut, in 1754. Afterwards private subscriptions were solicited in England, and the Earl of Dartmouth was a large donor and became one of the trustees. The site was soon moved to Hanover, New Hampshire, where large grants of land had been made by the proprietors. It was chartered by the Crown in 1769, and was created a perpetual corporation, with Dr. Wheelock as founder and President; he was empowered to name his own successor subject to the approval of the trustees, to whom was given power to fill vacancies in their own body and to make laws for the College subject to the Crown.

It seems that in his early days Dr. Wheelock had a controversy on religious matters with Dr. Bellamy. These men were graduates of Yale; the former was a Presbyterian, and the latter a Congregationalist. This religious war was carried on by the successors of these men, the son of Dr. Wheelock, and President of the College, and a pupil of Dr. Bellamy, who had been elected a trustee; it soon, however, became a political contest between factions of the trustees, one of which objected to what it called the "family dynasty." In 1809 this faction became a majority and opposed the other so vigorously that in 1815 the Wheelock party set forth its case in a lengthy pamphlet. Much ink was shed upon both sides as a result. Wheelock then sent a memorial to the Legislature charging the trustees with violation of trust and religious intolerance, and prayed for an investigation by a committee of the Legislature. The trustees were Federalists and Congregationalists, the ruling power in State and Church. Mr. Mason, Mr. Webster's old antagonist at the New Hampshire bar, was secured as counsel for the trustees. The Wheelock party made advances to Mr. Webster, but he saw that the case was fast assuming a political tone, and he declined the offer. Contrary to Mr. Mason's advice, the trustees removed President Wheelock, and appointed Rev. Francis Brown in his place. As a result all the Democrats and all religious orders, other than the Congregational, united against the trustees--and the political die was cast.

At the next election the Democrats carried the State, and the Governor in his message took occasion to declare against the trustees. The Legislature, in June, 1816, passed an act to reorganize the College, and under this law the new trustees were chosen; thus the College became a State institution. Woodward, the Secretary of the old board, had been removed, and became the Secretary of the newly constituted board. Suit was brought against him by the old board, for the College seal and other property, and the case in charge of Mr. Mason and Judge Smith came up for trial in May, 1817; it was argued and then went over to the September term of the same year at Exeter. It was at this stage of the proceedings that Mr. Webster joined the counsel for the College. He made the closing argument of such force and pathos as to draw tears from the crowd in the court-room. The decision was against the College.

In Mr. Mason's brief we find that there were three points made against the Acts of the Legislature: (1) that they were not within the power of that body; (2) that they violated the Constitution of New Hampshire; and (3) that they violated the Constitution of the United States, or the right of private contracts. The third point was not, however, pressed by the counsel, and was not considered as very important; they based their case mostly upon the first point: that the College was founded by private parties, for special purposes, and that any quarrel of the trustees was a question for the courts to settle, and not for the Legislature. When it was decided against them, they removed the case to the Supreme Court of the United States on this one point, that the acts impaired the obligation of contracts. The friends of the College now desired Mr. Webster to take entire charge of the case; he consented, and selected as his assistant, Mr. Hopkinson, of Philadelphia. Mr. Holmes of Maine and Mr. Wirt conducted the defence.

The case was heard on March 10, 1818, and was opened by Mr. Webster. With the notes and minutes of the previous counsel Mr. Webster was familiar, and he said that the credit of the legal points and theories he set forth was due to them; he was only the arranger and reciter of what they had prepared. Mr. Webster had a remarkable power of selecting and using the material of other men, but he was always ready to give them the credit due.