But to Webster's eminence as a lawyer and a statesman, it is proper to add, that he has never been excelled as a writer of state papers among the public men of the United States. Mr. Emerson has a phrase which is exactly applicable to these efforts of Webster's mind. That phrase is, "superb propriety." Throughout his despatches, he always seems to feel that he impersonates his country; and the gravity and weight of his style are as admirable as its simplicity and majestic ease. "Daniel Webster, his mark," is indelibly stamped on them all. When the Treaty of Washington was criticised by the Whigs in the English Parliament, Macaulay specially noticed the difference in the style of the two negotiators. Lord Ashburton, he said, had compromised the honor of his country by "the humble, caressing, wheedling tone" of his letters, a tone which contrasted strangely with "the firm, resolute, vigilant, and unyielding manner" of the American Secretary of State. It is to be noticed that no other opponent of Sir Robert Peel's administration, not even Lord Palmerston and Lord John Russell, struck at the essential weakness of Lord Ashburton's despatches with the force and sagacity which characterized Macaulay's assault on the treaty. Indeed, a rhetorician and critic less skilful than Macaulay can easily detect that "America" is represented fully in Webster's despatches, while "Britannia" has a very amiable, but not very forcible, representative in Lord Ashburton. Had Palmerston been the British plenipotentiary, we can easily imagine how different would have been the task imposed on Webster. As the American Secretary was generally in the right in every position he assumed, he would probably have triumphed even over Palmerston; but the letters of the "pluckiest" of English statesmen would, we may be sure, have never been criticised in the House of Commons as "humble, wheedling, and caressing."

In addition, however, to his legal arguments, his senatorial speeches, and his state papers, Webster is to be considered as the greatest orator our country has produced in his addresses before miscellaneous assemblages of the people. In saying this we do not confine the remark to such noble orations as those on the "First Settlement of New England," "The Bunker Hill Monument," and "Adams and Jefferson," but extend it so as to include speeches before great masses of people who could be hardly distinguished from a mob, and who were under no restraint but that imposed by their own self-respect and their respect for the orator. On these occasions he was uniformly successful. It is impossible to detect, in any reports of these popular addresses, that he ever stooped to employ a style of speech or mode of argument commonly supposed appropriate to a speaker on the "stump"; and yet he was the greatest "stump" orator that our country has ever seen. He seemed to delight in addressing five, or ten, or even twenty thousand people, in the open air, trusting that the penetrating tones of his voice would reach even the ears of those who were on the ragged edges of the swaying crowd before him; and he would thus speak to the sovereign people, in their unorganized state as a collection of uneasy and somewhat belligerent individuals, with a dignity and majesty similar to the dignity and majesty which characterized his arguments before the Senate of the United States, or before a bench of judges. A large portion of his published works consist of such speeches, and they rank only second among the remarkable productions of his mind.

The question arises, How could he hold the attention of such audiences without condescending to flatter their prejudices, or without occasionally acting the part of the sophist and the buffoon? Much may be said, in accounting for this phenomenon, about his widely extended reputation, his imposing presence, the vulgar curiosity to see a man whom even the smallest country newspaper thought of sufficient importance to defame, his power of giving vitality to simple words which the most ignorant of his auditors could easily understand, and the instinctive respect which the rudest kind of men feel for a grand specimen of robust manhood. But the real, the substantial source of his power over such audiences proceeded from his respect for them; and their respect for him was more or less consciously founded on the perception of this fact.

Indeed, a close scrutiny of his speeches will show how conscientiously he regards the rights of other minds, however inferior they may be to his own; and this virtue, for it is a virtue, is never more apparent than in his arguments and appeals addressed to popular assemblies. No working-man, whether farmer, mechanic, factory "hand," or day-laborer, ever deemed himself insulted by a word from the lips of Daniel Webster; he felt himself rather exalted in his own esteem, for the time, by coming in contact with that beneficent and comprehensive intelligence, which cherished among its favorite ideas a scheme for lifting up the American laborer to a height of comfort and respectability which the European laborer could hardly hope to attain. Prominent politicians, men of wealth and influence, statesmen of high social and political rank, may, at times, have considered Webster as arrogant and bad-tempered, and may, at times, have felt disposed to fasten a quarrel upon him; even in Massachusetts this disposition broke out in conventions of the party to which he belonged; but it would be in vain to find a single laboring-man, whether he met Webster in private, or half pushed and half fought his way into a mass meeting, in order to get his ears into communication with the orator's voice, who ever heard a word from him which did not exalt the dignity of labor, or which was not full of sympathy for the laborer's occasional sorrows and privations. Webster seemed to have ever present to his mind the poverty of the humble home of his youth. His father, his brothers, he himself, had all been brought up to consider manual toil a dignified occupation, and as consistent with the exercise of all the virtues which flourish under the domestic roof. More than this, it may be said that, with the exception of a few intimate friends, his sympathies to the last were most warmly with common laborers. Indeed, if we closely study the private correspondence of this statesman, who was necessarily brought into relations, more or less friendly, with the conventionally great men of the world, European as well as American, we shall find that, after all, he took more real interest in Seth Peterson, and John Taylor, and Porter Wright, men connected with him in fishing and farming, than he did in the ambassadors of foreign states whom he met as Senator or as Secretary of State, or in all the members of the polite society of Washington, New York, and Boston. He was very near to Nature himself; and the nearer a man was to Nature, the more he esteemed him. Thus persons who superintended his farms and cattle, or who pulled an oar in his boat when he ventured out in search of cod and halibut, thought "Squire Webster" a man who realized their ideal and perfection of good-fellowship while it may confidently be said that many of his closest friends among men of culture, including lawyers, men of letters, and statesmen of the first rank, must have occasionally resented the "anfractuosities" of his mood and temper. But Seth Peterson, and Porter Wright, and John Taylor, never complained of these "anfractuosities." Webster, in fact, is one of the few public men of the country in whose championship of the rights and sympathy with the wrongs of labor there is not the slightest trace of the arts of the demagogue; and in this fact we may find the reason why even the "roughs," who are present in every mass meeting, always treated him with respect. Perhaps it would not be out of place to remark here, that, in his Speech of the 7th of March, he missed a grand opportunity to vindicate Northern labor, in the reference he made to a foolish tirade of a Senator from Louisiana, who "took pains to run a contrast between the slaves of the South and the laboring people of the North, giving the preference, in all points of condition, of comfort, and happiness, to the slaves of the South." Webster made a complete reply to this aspersion on Northern labor; but, as his purpose was to conciliate, he did not blast the libeller by quoting the most eminent example that could be named demonstrating the falsehood of the slave-holding Senator's assertion. Without deviating from the conciliatory attitude he had assumed, one could easily imagine him as lifting his large frame to its full height, flashing from his rebuking eyes a glance of scorn at the "amiable Senator," and simply saying, "I belong to the class which the Senator from Louisiana stigmatizes as more degraded than the slaves of the South." There was not at the time any Senator from the South, except Mr. Calhoun, that the most prejudiced Southern man would have thought of comparing with Webster in respect to intellectual eminence; and, if Webster had then and there placed himself squarely on his position as the son of a Northern laborer, we should have been spared all the rhetoric about Northern "mud-sills," with which the Senate was afterwards afflicted. Webster was our man of men; and it would seem that he should have crushed such talk at the outset, by proudly assuming that Northern labor was embodied and impersonated in him,—that HE had sprung from its ranks, and was proud of his ancestry.

An ingenious and powerful, but paradoxical thinker, once told me that I was mistaken in calling Jonathan Edwards and Daniel Webster great reasoners. "They were bad reasoners," he added, "but great poets." Without questioning the right of the author of "An Enquiry into the Modern Prevailing Notion of that Freedom of the Will, which is supposed to be Essential to Moral Agency," to be ranked among the most eminent of modern logicians, I could still understand why he was classed among poets; for whether Edwards paints the torments of hell or the bliss of heaven, his imagination almost rivals that of Dante in intensity of realization. But it was at first puzzling to comprehend why Webster should be depressed as a reasoner in order to be exalted as a poet. The images and metaphors scattered over his speeches are so evidently brought in to illustrate and enforce his statements and arguments, that, grand as they often are, the imagination displayed in them is still a faculty strictly subsidiary to the reasoning power. It was only after reflecting patiently for some time on the seeming paradox that I caught a glimpse of my friend's meaning; and it led me at once to consider an entirely novel question, not heretofore mooted by any of Webster's critics, whether friendly or unfriendly, in their endeavors to explain the reason of his influence over the best minds of the generation to which he belonged. In declaring that, as a poet, he far exceeded any capacity he evinced as a reasoner, my paradoxical friend must have meant that Webster had the poet's power of so organizing a speech, that it stood out to the eye of the mind as a palpable intellectual product and fact, possessing, not merely that vague reality which comes from erecting a plausible mental structure of deductive argumentation, based on strictly limited premises, but a positive reality, akin to the products of Nature herself, when she tries her hand in constructing a ledge of rocks or rearing a chain of hills.

In illustration, it may be well to cite the example of poets with whom Webster, of course, cannot be compared. Among the great mental facts, palpable to the eyes of all men interested in literature, are such creations as the Iliad, the Divine Comedy, the great Shakspearian dramas, the Paradise Lost, and Faust. The commentaries and criticisms on these are numerous enough to occupy the shelves of a large library; some of them attempt to show that Homer, Dante, Shakspeare, Milton, and Goethe were all wrong in their methods of creation; but they still cannot obscure, to ordinary vision, the lustre of these luminaries as they placidly shine in the intellectual firmament, which is literally over our heads. They are as palpable, to the eye of the mind, as Sirius, Arcturus, the Southern Cross, and the planets Venus, Mars, Jupiter, and Saturn, are to the bodily sense. M. Taine has recently assailed the Paradise Lost with the happiest of French epigrams; he tries to prove that, in construction, it is the most ridiculously inartistic monstrosity that the imagination of a great mind ever framed out of chaos; but, after we have thoroughly enjoyed the play of his wit, there the Paradise Lost remains, an undisturbed object in the intellectual heavens, disdaining to justify its right to exist on any other grounds than the mere fact of its existence; and, certainly, not more ridiculous than Saturn himself, as we look at him through a great equatorial telescope, swinging through space encumbered with his clumsy ring, and his wrangling family of satellites, but still, in spite of peculiarities on which M. Taine might exercise his wit until doomsday, one of the most beautiful and sublime objects which the astronomer can behold in the whole phenomena of the heavens.

Indeed, in reading criticisms on such durable poetic creations and organizations as we have named, one is reminded of Sydney Smith's delicious chaffing of his friend Jeffrey, on account of Jeffrey's sensitiveness of literary taste, and his inward rage that events, men, and books, outside of him, do not correspond to the exacting rules which are the products of his own subjective and somewhat peevish intelligence. "I like," says Sydney, "to tell you these things, because you never do so well as when you are humbled and frightened, and, if you could be alarmed into the semblance of modesty, you would charm everybody; but remember my joke against you about the moon: 'D—n the solar system! bad light—planets too distant—pestered with comets—feeble contrivance; could make a better with great ease.'"

Now when a man, in whatever department or direction of thought his activity is engaged, succeeds in organizing, or even welding together, the materials on which he works, so that the product, as a whole, is visible to the mental eye, as a new creation or construction, he has an immense advantage over all critics of his performance. Refined reasonings are impotent to overthrow it; epigrams glance off from it, as rifle-bullets rebound when aimed at a granite wall; and it stands erect long after the reasonings and the epigrams are forgotten. Even when its symmetry is destroyed by a long and destructive siege, a pile of stones still remains, as at Fort Sumter, to attest what power of resistance it opposed to all the resources of modern artillery.

If we look at Webster's greatest speeches, as, for instance, "The Reply to Hayne," "The Constitution not a Compact between Sovereign States," "The President's Protest," and others that might be mentioned, we shall find that they partake of the character of organic formations, or at least of skilful engineering or architectural constructions. Even Mr. Calhoun never approached him in this art of giving objective reality to a speech, which, after all, is found, on analysis, to consist only of a happy collocation and combination of words, but in Webster the words are either all alive with the creative spirit of the poet, or, at the worst, resemble the blocks of granite or marble which the artisan piles, one on the other, and the result of which, though it may represent a poor style of architecture, is still a rude specimen of a Gothic edifice. The artist and artificer are both observable in Webster's work; but the reality and solidity of the construction cannot be questioned. At the present time, an educated reader would be specially interested in the mental processes by which Webster thus succeeded in giving objective existence and validity to the operations of his mind, and, whether sympathizing with his opinions or not, would as little think of refusing to read them because of their Whiggism, as he would think of refusing to read Homer because of his heathenism, or Dante because of his Catholicism, or Milton because of his compound of Arianism and Calvinism, or Goethe because of his Pantheism. The fact which would most interest such a reader would be, that Webster had, in some mysterious way, translated and transformed his abstract propositions into concrete substance and form. The form might offend his reason, his taste, or his conscience; but he could not avoid admitting that it had a form, while most speeches, even those made by able men, are comparatively formless, however lucid they may be in the array of facts, and plausible in the order and connection of arguments.

In trying to explain this power, the most obvious comparison which would arise in the mind of an intelligent reader would be, that Webster, as a rhetorician, resembled Vauban and Cohorn as military engineers. In the war of debate, he so fortified the propositions he maintained, that they could not be carried by direct assault, but must be patiently besieged. The words he employed were simple enough, and fell short of including the vocabulary of even fifth-rate declaimers; but he had the art of so disposing them that, to an honest reasoner, the position he took appeared to be impregnable. To assail it by the ordinary method of passionate protest and illogical reasoning, was as futile as a dash of light cavalry would have been against the defences of such cities as Namur and Lille. Indeed, in his speech, "The Constitution not a Compact between Sovereign States," he erected a whole Torres Vedras line of fortifications, on which legislative Massenas dashed themselves in vain, and, however strong in numbers in respect to the power of voting him down, recoiled defeated in every attempt to reason him down.

In further illustration of this peculiar power of Webster, the Speech of the 7th of March, 1850, may be cited, for its delivery is to be ranked with the most important historical events. For some years it was the object of the extremes of panegyric and the extremes of execration. But this effort is really the most loosely constructed of all the great productions of Webster's mind. In force, compactness, and completeness, in closeness of thought to things, in closeness of imagery to the reasoning it illustrates, and in general intellectual fibre, muscle, and bone, it cannot be compared to such an oration as that on the "First Settlement of New England," or such a speech as that which had for its theme, "The Constitution not a Compact between Sovereign States"; but, after all deductions have been made, it was still a speech which frowned upon its opponents as a kind of verbal fortress constructed both for the purpose of defence and aggression. Its fame is due, in a great degree, to its resistance to a storm of assaults, such as had rarely before been concentrated on any speech delivered in either branch of the Congress of the United States. Indeed, a very large portion of the intellect, the moral sentiment, and the moral passion of the free States was directed against it. There was not a weapon in the armory of the dialectician or the rhetorician which was not employed with the intent of demolishing it. Contempt of Webster was vehemently taught as the beginning of political wisdom. That a speech, thus assailed, should survive the attacks made upon it, appeared to be impossible. And yet it did survive, and is alive now, while better speeches, or what the present writer thought, at the time, to be more convincing speeches, have not retained individual existence, however deeply they may have influenced that public opinion which, in the end, determines political events. "I still live," was Webster's declaration on his death-bed, when the friends gathered around it imagined he had breathed his last; and the same words might be uttered by the Speech of the 7th of March, could it possess the vocal organ which announces personal existence. Between the time it was originally delivered and the present year there runs a great and broad stream of blood, shed from the veins of Northern and Southern men alike; the whole political and moral constitution of the country has practically suffered an abrupt change; new problems engage the attention of thoughtful statesmen; much is forgotten which was once considered of the first importance; but the 7th of March Speech, battered as it is by innumerable attacks, is still remembered at least as one which called forth more power than it embodied in itself. This persistence of life is due to the fact that it was "organized."

Is this power of organization common among orators? It seems to me that, on the contrary, it is very rare. In some of Burke's speeches, in which his sensibility and imagination were thoroughly under the control of his judgment, as, for instance, his speech on Conciliation with America, that on Economical Reform, and that to the Electors of Bristol, we find the orator to be a consummate master of the art of so constructing a speech that it serves the immediate object which prompted its delivery, while at the same time it has in it a principle of vitality which makes it survive the occasion that called it forth. But the greatest of Burke's speeches, if we look merely at the richness and variety of mental power and the force and depth of moral passion displayed in it, is his speech on the Nabob of Arcot's Debts. No speech ever delivered before any assembly, legislative, judicial, or popular, can rank with this in respect to the abundance of its facts, reasonings, and imagery, and the ferocity of its moral wrath. It resembles the El Dorado that Voltaire's Candide visited, where the boys played with precious stones of inestimable value, as our boys play with ordinary marbles; for to the inhabitants of El Dorado diamonds and pearls were as common as pebbles are with us.

But the defect of this speech, which must still be considered, on the whole, the most inspired product of Burke's great nature, was this,— that it did not strike its hearers or readers as having reality for its basis or the superstructure raised upon it. Englishmen could not believe then, and most of them probably do not believe now, that it had any solid foundation in incontrovertible facts. It did not "fit in" to their ordinary modes of thought; and it has never been ranked with Burke's "organized" orations; it has never come home to what Bacon called the "business and bosoms" of his countrymen. They have generally dismissed it from their imaginations as "a phantasmagoria and a hideous dream" created by Burke under the impulse of the intense hatred he felt for the administration which succeeded the overthrow of the government, which was founded on the coalition of Fox and North.

Now, in simple truth, the speech is the most masterly statement of facts, relating to the oppression of millions of the people of India, which was ever forced on the attention of the House of Commons,—a legislative assembly which, it may be incidentally remarked, was practically responsible for the just government of the immense Indian empire of Great Britain. It is curious that the main facts on which the argument of Burke rests have been confirmed by James Mill, the coldest-blooded historian that ever narrated the enormous crimes which attended the rise and progress of the British power in Hindostan, and a man who also had a strong intellectual antipathy to the mind of Burke. In making the speech, Burke had documentary evidence of a large portion of the transactions he denounced, and had divined the rest. Mill supports him both as regards the facts of which Burke had positive knowledge, and the facts which he deductively inferred from the facts he knew. Having thus a strong foundation for his argument, he exerted every faculty of his mind, and every impulse of his moral sentiment and moral passion, to overwhelm the leading members of the administration of Pitt, by attempting to make them accomplices in crimes which would disgrace even slave-traders on the Guinea coast. The merely intellectual force of his reasoning is crushing; his analysis seems to be sharpened by his hatred; and there is no device of contempt, scorn, derision, and direct personal attack, which he does not unsparingly use. In the midst of all this mental tumult, inestimable maxims of moral and political wisdom are shot forth in short sentences, which have so much of the sting and brilliancy of epigram, that at first we do not appreciate their depth of thought; and through all there burns such a pitiless fierceness of moral reprobation of cruelty, injustice, and wrong, that all the accredited courtesies of debate are violated, once, at least, in every five minutes. In any American legislative assembly he would have been called to order at least once in five minutes. The images which the orator brings in to give vividness to his argument are sometimes coarse; but, coarse as they are, they admirably reflect the moral turpitude of the men against whom he inveighs. Among these is the image with which he covers Dundas, the special friend of Pitt, with a ridicule which promises to be immortal. Dundas, on the occasion when Fox and Burke called for papers by the aid of which they proposed to demonstrate the iniquity of the scheme by which the ministry proposed to settle the debts of the Nabob of Arcot, pretended that the production of such papers would be indelicate,—"that this inquiry is of a delicate nature, and that the state will suffer detriment by the exposure of this transaction." As Dundas had previously brought out six volumes of Reports, generally confirming Burke's own views of the corruption and oppression which marked the administration of affairs in India, he laid himself open to Burke's celebrated assault. Dundas and delicacy, he said, were "a rare and singular coalition." And then follows an image of colossal coarseness, such as might be supposed capable of rousing thunder-peals of laughter from a company of festive giants,—an image which Lord Brougham declared offended his sensitive taste,—the sensitive taste of one of the most formidable legal and legislative bullies that ever appeared before the juries or Parliament of Great Britain, and who never hesitated to use any illustration, however vulgar, which he thought would be effective to degrade his opponents.

But whatever may be thought of the indelicacy of Burke's image, it was one eminently adapted to penetrate through the thick hide of the minister of state at whom it was aimed, and it shamed him as far as a profligate politician like Dundas was capable of feeling the sensation of shame. But there are also flashes, or rather flames, of impassioned imagination, in the same speech, which rush up from the main body of its statements and arguments, and remind us of nothing so much as of those jets of incandescent gas which, we are told by astronomers, occasionally leap, from the extreme outer covering of the sun, to the height of a hundred or a hundred and sixty thousand miles, and testify to the terrible forces raging within it. After reading this speech for the fiftieth time, the critic cannot free himself from the rapture of admiration and amazement which he experienced in his first fresh acquaintance with it. Yet its delivery in the House of Commons (February 28, 1785) produced an effect so slight, that Pitt, after a few minutes' consultation with Grenville, concluded that it was not worth the trouble of being answered; and the House of Commons, obedient to the Prime Minister's direction, negatived, by a large majority, the motion in advocating which Burke poured out the wonderful treasures of his intellect and imagination. To be sure, the House was tired to death with the discussion, was probably very sleepy, and the orator spoke five hours after the members had already shouted, "Question! Question!"

The truth is, that this speech, unmatched though it is in the literature of eloquence, had not, as has been previously stated, the air of reality. It struck the House as a magnificent Oriental dream, as an Arabian Nights' Entertainment, as a tale told by an inspired madman, "full of sound and fury, signifying nothing"; and the evident partisan intention of the orator to blast Pitt's administration by exhibiting its complicity in one of the most enormous frauds recorded in history, confirmed the dandies, the cockneys, the bankers, and the country gentlemen, who, as members of the House of Commons, stood by Pitt with all the combined force of their levity, their venality, and their stupidity, in the propriety of voting Burke down. And even now, when the substantial truth of all the facts he alleged is established on evidence which convinces historians, the admiring reader can understand why it failed to convince Burke's contemporaries, and why it still appears to lack the characteristics of a speech thoroughly organized. Indeed, the mind of Burke, when it was delivered, can only be compared to a volcanic mountain in eruption;—not merely a volcano like that of Vesuvius, visited by scientists and amateurs in crowds, when it deigns to pour forth its flames and lava for the entertainment of the multitude; but a lonely volcano, like that of Etna, rising far above Vesuvius in height, far removed from all the vulgar curiosity of a body of tourists, but rending the earth on which it stands with the mighty earthquake throes of its fiery centre and heart. The moral passion,—perhaps it would be more just to say the moral fury,—displayed in the speech, is elemental, and can be compared to nothing less intense than the earth's interior fire and heat.

Now in Webster's great legislative efforts, his mind is never exhibited in a state of eruption. In the most excited debates in which he bore a prominent part, nothing strikes us more than the admirable self-possession, than the majestic inward calm, which presides over all the operations of his mind and the impulses of his sensibility, so that, in building up the fabric of his speech, he has his reason, imagination, and passion under full control,—using each faculty and feeling as the occasion may demand, but never allowing himself to be used by it,—and always therefore conveying the impression of power in reserve, while he may, in fact, be exercising all the power he has to the utmost. In laboriously erecting his edifice of reasoning he also studiously regards the intellects and the passions of ordinary men; strives to bring his mind into cordial relations with theirs; employs every faculty he possesses to give reality, to give even visibility, to his thoughts; and though he never made a speech which rivals that of Burke on the Nabob of Arcot's Debts, in respect to grasp of understanding, astounding wealth of imagination and depth of moral passion, he always so contrived to organize his materials into a complete whole, that the result stood out clearly to the sight of the mind, as a structure resting on strong foundations, and reared to due height by the mingled skill of the artisan and the artist. When he does little more than weld his materials together, he is still an artificer of the old school of giant workmen, the school that dates its pedigree from Tubal Cain.

After all this wearisome detail and dilution of the idea attempted to be expressed, it may be that I have failed to convey an adequate impression of what constitutes Webster's distinction among orators, as far as orators have left speeches which are considered an invaluable addition to the literature of the language in which they were originally delivered. Everybody understands why any one of the great sermons of Jeremy Taylor, or the sermon of Dr. South on "Man created in the Image of God," or the sermon of Dr. Barrow on "Heavenly Rest," differs from the millions on millions of doubtless edifying sermons that have been preached and printed during the last two centuries and a half; but everybody does not understand the distinction between one brilliant oration and another, when both made a great sensation at the time, while only one survived in literature. Probably Charles James Fox was a more effective speaker in the House of Commons than Edmund Burke, probably Henry Clay was a more effective speaker in Congress than Daniel Webster; but when the occasions on which their speeches were made are found gradually to fade from the memory of men, why is it that the speeches of Fox and Clay have no recognized position in literature, while those of Burke and Webster are ranked with literary productions of the first class? The reason is as really obvious as that which explains the exceptional value of some of the efforts of the great orators of the pulpit. Jeremy Taylor, Dr. South, and Dr. Barrow, different as they were in temper and disposition, succeeded in "organizing" some masterpieces in their special department of intellectual and moral activity; and the same is true of Burke and Webster in the departments of legislation and political science. The "occasion" was merely an opportunity for the consolidation into a speech of the rare powers and attainments, the large personality and affluent thought, which were the spiritual possessions of the man who made it,—a speech which represented the whole intellectual manhood of the speaker,—a manhood in which knowledge, reason, imagination, and sensibility were all consolidated under the directing power of will.

A pertinent example of the difference we have attempted to indicate may be easily found in contrasting Fox's closing speech on the East India Bill with Burke's on the same subject. For immediate effect on the House of Commons, it ranks with the most masterly of Fox's Parliamentary efforts. The hits on his opponents were all "telling." The argumentum ad hominem, embodied in short, sharp statements, or startling interrogatories, was never employed with more brilliant success. The reasoning was rapid, compact, encumbered by no long enumeration of facts, and, though somewhat unscrupulous here and there, was driven home upon his adversaries with a skill that equalled its audacity. It may be said that there is not a sentence in the whole speech which was not calculated to sting a sleepy audience into attention, or to give delight to a fatigued audience which still managed to keep its eyes and minds wide open. Even in respect to the principles of liberty and justice, which were the animating life of the bill, Fox's terse sentences contrast strangely with the somewhat more lumbering and elaborate paragraphs of Burke. "What," he exclaims, putting his argument in his favorite interrogative form,—"what is the most odious species of tyranny? Precisely that which this bill is meant to annihilate. That a handful of men, free themselves, should exercise the most base and abominable despotism over millions of their fellow-creatures; that innocence should be the victim of oppression; that industry should toil for rapine; that the harmless laborer should sweat, not for his own benefit, but for the luxury and rapacity of tyrannic depredation;—in a word, that thirty millions of men, gifted by Providence with the ordinary endowments of humanity, should groan under a system of despotism unmatched in all the histories of the world? What is the end of all government? Certainly, the happiness of the governed. Others may hold different opinions; but this is mine, and I proclaim it. What, then, are we to think of a government whose good fortune is supposed to spring from the calamities of its subjects, whose aggrandizement grows out of the miseries of mankind? This is the kind of government exercised under the East Indian Company upon the natives of Hindostan; and the subversion of that infamous government is the main object of the bill in question." And afterwards he says, with admirable point and pungency of statement: "Every line in both the bills which I have had the honor to introduce, presumes the possibility of bad administration; for every word breathes suspicion. This bill supposes that men are but men. It confides in no integrity; it trusts no character; it inculcates the wisdom of a jealousy of power, and annexes responsibility, not only to every action, but even to the inaction of those who are to dispense it. The necessity of these provisions must be evident, when it is known that the different misfortunes of the company have resulted not more from what their servants did, than from what the masters did not."

There is a directness in such sentences as these which we do not find in Burke's speech on the East India Bill; but Burke's remains as a part of English literature, and in form and substance, especially in substance, is so immensely superior to that of Fox, that, in quoting sentences from the latter, one may almost be supposed to rescue them from that neglect which attends all speeches which do not reach beyond the occasion which calls them forth. In Bacon's phrase, the speech of Fox shows "small matter, and infinite agitation of wit"; in Burke's, we discern large matter with an abundance of "wit" proper to the discussion of the matter, but nothing which suggests the idea of mere "agitation." Fox, in his speeches, subordinated every thing to the immediate impression he might make on the House of Commons. He deliberately gave it as his opinion, that a speech that read well must be a bad speech; and, in a literary sense, the House of Commons, which he entered before he was twenty, may be called both the cradle and the grave of his fame. It has been said that he was a debater whose speeches should be studied by every man who wishes "to learn the science of logical defence"; that he alone, among English orators, resembles Demosthenes, inasmuch as his reasoning is "penetrated and made red-hot by passion"; and that nothing could excel the effect of his delivery when "he was in the full paroxysm of inspiration, foaming, screaming, choked by the rushing multitude of his words." But not one of his speeches, not even that on the East India Bill, or on the Westminster Scrutiny, or on the Russian Armament, or on Parliamentary Reform, or on Mr. Pitt's Rejection of Bonaparte's Overtures for Peace, has obtained an abiding place in the literature of Great Britain. It would be no disparagement to an educated man, if it were said that he had never read these speeches; but it would be a serious bar to his claim to be considered an English scholar, if he confessed to be ignorant of the great speeches of Burke; for such a confession would be like admitting that he had never read the first book of Hooker's Ecclesiastical Polity, Bacon's Essays and Advancement of Learning, Milton's Areopagitica, Butler's Analogy, and Adam Smith's Wealth of Nations.

When we reflect on the enormous number of American speeches which, when they were first delivered, were confidently predicted, by appreciating friends, to insure to the orators a fame which would be immortal, one wonders a little at the quiet persistence of the speeches of Webster in refusing to die with the abrupt suddenness of other orations, which, at the time of their delivery, seemed to have an equal chance of renown. The lifeless remains of such unfortunate failures are now entombed in that dreariest of all mausoleums, the dingy quarto volumes, hateful to all human eyes, which are lettered on the back with the title of "Congressional Debates,"—a collection of printed matter which members of Congress are wont to send to a favored few among their constituents, and which are immediately consigned to the dust-barrel or sold to pedlers in waste paper, according as the rage of the recipients takes a scornful or an economical direction. It would seem that the speeches of Webster are saved from this fate, by the fact that, in them, the mental and moral life of a great man, and of a great master of the English language, are organized in a palpable intellectual form. The reader feels that they have some of the substantial qualities which he recognizes in looking at the gigantic constructions of the master workmen among the crowd of the world's engineers and architects, in looking at the organic products of Nature herself, and in surveying, through the eye of his imagination, those novel reproductions of Nature which great poets have embodied in works which are indelibly stamped with the character of deathlessness.

But Webster is even more obviously a poet—subordinating "the shows of things to the desires of the mind"—in his magnificent idealization, or idolization, of the Constitution and the Union. By the magic of his imagination and sensibility he contrived to impress on the minds of a majority of the people of the free States a vague, grand idea that the Constitution was a sacred instrument of government,—a holy shrine of fundamental law, which no unhallowed hands could touch without profanation,—a digested system of rights and duties, resembling those institutes which were, in early times, devised by the immortal gods for the guidance of infirm mortal man; and the mysterious creatures, half divine and half human, who framed this remarkable document, were always reverently referred to as "the Fathers,"—as persons who excelled all succeeding generations in sagacity and wisdom; as inspired prophets, who were specially selected by Divine Providence to frame the political scriptures on which our political faith was to be based, and by which our political reason was to be limited. The splendor of the glamour thus cast over the imaginations and sentiments of the people was all the more effective because it was an effluence from the mind of a statesman who, of all other statesmen of the country, was deemed the most practical, and the least deluded by any misguiding lights of fancy and abstract speculation.

There can be little doubt that Webster's impressive idealization of the Constitution gave a certain narrowness to American thinking on constitutional government and the science of politics and legislation. Foreigners, of the most liberal views, could not sometimes restrain an expression of wonder, when they found that our most intelligent men, even our jurists and publicists, hardly condescended to notice the eminent European thinkers on the philosophy of government, so absorbed were they in the contemplation of the perfection of their own. When the great civil war broke out, hundreds of thousands of American citizens marched to the battle-field with the grand passages of Webster glowing in their hearts. They met death cheerfully in the cause of the "Constitution and Union," as by him expounded and idealized; and if they were so unfortunate as not to be killed, but to be taken captive, they still rotted to death in Southern prisons, sustained by sentences of Webster's speeches which they had declaimed as boys in their country schools. Of all the triumphs of Webster as a leader of public opinion, the most remarkable was his infusing into the minds of the people of the free States the belief that the Constitution as it existed in his time was an organic fact, springing from the intelligence, hearts, and wills of the people of the United States, and not, as it really was, an ingenious mechanical contrivance of wise men, to which the people, at the time, gave their assent.

The constitutions of the separate States of the Union were doubtless rooted in the habits, sentiments, and ideas of their inhabitants. But the Constitution of the United States could not possess this advantage, however felicitously it may have been framed for the purpose of keeping, for a considerable period, peace between the different sections of the country. As long, therefore, as the institution of negro slavery lasted, it could not be called a Constitution of States organically "United"; for it lacked the principle of growth, which characterizes all constitutions of government which are really adapted to the progressive needs of a people, if the people have in them any impulse which stimulates them to advance. The unwritten constitution of Great Britain has this advantage, that a decree of Parliament can alter the whole representative system, annihilating by a vote of the two houses all laws which the Parliament had enacted in former years. In Great Britain, therefore, a measure which any Imperial Parliament passes becomes at once the supreme law of the land, though it may nullify a great number of laws which previous Parliaments had passed under different conditions of the sentiment of the nation. Our Constitution, on the other hand, provides for the contingencies of growth in the public sentiment only by amendments to the Constitution. These amendments require more than a majority of all the political forces represented in Congress; and Mr. Calhoun, foreseeing that a collision must eventually occur between the two sections, carried with him, not only the South, but a considerable minority of the North, in resisting any attempt to limit the extension of slavery. On this point the passions and principles of the people of the slave-holding and the majority of the people of the non-slave-holding States came into violent opposition; and there was no possibility that any amendment to the Constitution could be ratified, which would represent either the growth of the Southern people in their ever-increasing belief that negro slavery was not only a good in itself, but a good which ought to be extended, or the growth of the Northern people in their ever-increasing hostility both to slavery and its extension. Thus two principles, each organic in its nature, and demanding indefinite development, came into deadly conflict under the mechanical forms of a Constitution which was not organic.

A considerable portion of the speeches in this volume is devoted to denunciations of violations of the Constitution perpetrated by Webster's political opponents. These violations, again, would seem to prove that written constitutions follow practically the same law of development which marks the progress of the unwritten. By a strained system of Congressional interpretation, the Constitution has been repeatedly compelled to yield to the necessities of the party dominant, for the time, in the government; and has, if we may believe Webster, been repeatedly changed without being constitutionally "amended." The causes which led to the most terrible civil war recorded in history were silently working beneath the forms of the Constitution,—both parties, by the way, appealing to its provisions,—while Webster was idealizing it as the utmost which humanity could come to in the way of civil government. In 1848, when nearly all Europe was in insurrection against its rulers, he proudly said that our Constitution promised to be the oldest, as well as the best, in civilized states. Meanwhile the institution of negro slavery was undermining the whole fabric of the Union. The moral division between the South and North was widening into a division between the religion of the two sections. The Southern statesmen, economists, jurists, publicists, and ethical writers had adapted their opinions to the demands which the defenders of the institution of slavery imposed on the action of the human intellect and conscience; but it was rather startling to discover that the Christian religion, as taught in the Southern States, was a religion which had no vital connection with the Christianity taught in the Northern States. There is nothing more astounding, to a patient explorer of the causes which led to the final explosion, than this opposition of religions. The mere form of the dogmas common to the religion of both sections might be verbally identical; but a volume of sermons by a Southern doctor of divinity, as far as he touched on the matter of slavery, was as different from one published by his Northern brother, in the essential moral and humane elements of Christianity, as though they were divided from each other by a gulf as wide as that which yawns between a Druid priest and a Christian clergyman.

The politicians of the South, whether they were the mouthpieces of the ideas and passions of their constituents, or were, as Webster probably thought, more or less responsible for their foolishness and bitterness, were ever eager to precipitate a conflict, which Webster was as eager to prevent, or at least to postpone. It was fortunate for the North, that the inevitable conflict did not come in 1850, when the free States were unprepared for it. Ten years of discussion and preparation were allowed; when the war broke out, it found the North in a position to meet and eventually to overcome the enemies of the Union; and the Constitution, not as it was, but as it is, now represents a form of government which promises to be permanent; for after passing through its baptism of fire and blood, the Constitution contains nothing which is not in harmony with any State government founded on the principle of equal rights which it guarantees, and is proof against all attacks but those which may proceed from the extremes of human folly and wickedness. But that, before the civil war, it was preserved so long under conditions which constantly threatened it with destruction, is due in a considerable degree to the circumstance that it found in Daniel Webster its poet as well as its "expounder."

In conclusion it may be said that the style of Webster is pre-eminently distinguished by manliness. Nothing little, weak, whining, or sentimental can be detected in any page of the six volumes of his works. A certain strength and grandeur of personality is prominent in all his speeches. When he says "I," or "my," he never appears to indulge in the bravado of self-assertion, because the words are felt to express a positive, stalwart, almost colossal manhood, which had already been implied in the close-knit sentences in which he embodied his statements and arguments. He is an eminent instance of the power which character communicates to style. Though evidently proud, self-respecting, and high-spirited, he is ever above mere vanity and egotism. Whenever he gives emphasis to the personal pronoun the reader feels that he had as much earned the right to make his opinion an authority, as he had earned the right to use the words he employs to express his ideas and sentiments. Thus, in the celebrated Smith Will trial, his antagonist, Mr. Choate, quoted a decision of Lord Chancellor Camden. In his reply, Webster argued against its validity as though it were merely a proposition laid down by Mr. Choate. "But it is not mine, it is Lord Camden's" was the instant retort. Webster paused for half a minute, and then, with his eye fixed on the presiding judge, he replied: "Lord Camden was a great judge; he is respected by every American, for he was on our side in the Revolution; but, may it please your honor, I differ from my Lord Camden." There was hardly a lawyer in the United States who could have made such a statement without exposing himself to ridicule; but it did not seem at all ridiculous, when the "I" stood for Daniel Webster. In his early career as a lawyer, his mode of reasoning was such as to make him practically a thirteenth juror in the panel; when his fame was fully established, he contrived, in some mysterious way, to seat himself by the side of the judges on the bench, and appear to be consulting with them as a jurist, rather than addressing them as an advocate. The personality of the man was always suppressed until there seemed to be need of asserting it; and then it was proudly pushed into prominence, though rarely passing beyond the limits which his acknowledged eminence as a statesman and lawyer did not justify him in asserting it. Among the selections in the present volume where his individuality becomes somewhat aggressive, and breaks loose from the restraints ordinarily self-imposed on it, may be mentioned his speech on his Reception at Boston (1842), his Marshfield Speech (1848), and his speech at his Reception at Buffalo (1851). Whatever may be thought of the course of argument pursued in these, they are at least thoroughly penetrated with a manly spirit,—a manliness somewhat haughty and defiant, but still consciously strong in its power to return blow for blow, from whatever quarter the assault may come.

But the real intellectual and moral manliness of Webster underlies all his great orations and speeches, even those where the animating life which gives them the power to persuade, convince, and uplift the reader's mind, seems to be altogether impersonal; and this plain force of manhood, this sturdy grapple with every question that comes before his understanding for settlement, leads him contemptuously 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.



THE GREAT ORATIONS AND SPEECHES

OF

DANIEL WEBSTER.



THE DARTMOUTH COLLEGE CASE.

ARGUMENT BEFORE THE SUPREME COURT OF THE UNITED STATES, AT WASHINGTON, ON THE 10TH OF MARCH, 1818.

[The action, The Trustees of Dartmouth College v. William H. Woodward, was commenced in the Court of Common Pleas, Grafton County, State of New Hampshire, February term, 1817. The declaration was trover for the books of record, original charter, common seal, and other corporate property of the College. The conversion was alleged to have been made on the 7th day of October, 1816. The proper pleas were filed, and by consent the cause was carried directly to the Superior Court of New Hampshire, by appeal, and entered at the May term, 1817. The general issue was pleaded by the defendant, and joined by the plaintiffs. The facts in the case were then agreed upon by the parties, and drawn up in the form of a special verdict, reciting the charter of the College and the acts of the legislature of the State, passed June and December, 1816, by which the said corporation of Dartmouth College was enlarged and improved, and the said charter amended.

The question made in the case was, whether those acts of the legislature were valid and binding upon the corporation, without their acceptance or assent, and not repugnant to the Constitution of the United States. If so, the verdict found for the defendants; otherwise, it found for the plaintiffs.

The cause was continued to the September term of the court in Rockingham County, where it was argued; and at the November term of the same year, in Grafton County, the opinion of the court was delivered by Chief Justice Richardson, in favor of the validity and constitutionality of the acts of the legislature; and judgment was accordingly entered for the defendant on the special verdict.

Thereupon a writ of error was sued out by the original plaintiffs, to remove the cause to the Supreme Court of the United States; where it was entered at the term of the court holden at Washington on the first Monday of February, 1818.

The cause came on for argument on the 10th day of March, 1818, before all the judges. It was argued by Mr. Webster and Mr. Hopkinson for the plaintiffs in error, and by Mr. Holmes and the Attorney-General (Wirt) for the defendant in error.

At the term of the court holden in February, 1819, the opinion of the judges was delivered by Chief Justice Marshall, declaring the acts of the legislature unconstitutional and invalid, and reversing the judgment of the State Court. The court, with the exception of Mr. Justice Duvall, were unanimous.

The following was the argument of Mr. Webster for the plaintiffs in error.]

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." The preamble to the charter recites, that it is granted on the application and request of the Rev. Eleazer Wheelock: That Dr. Wheelock, about the year 1754, established a charity school, at his own expense, and on his own estate and plantation: That for several years, through the assistance of well-disposed persons in America, granted at his solicitation, he had clothed, maintained, and educated a number of native Indians, and employed them afterwards as missionaries and schoolmasters among the savage tribes: That, his design promising to be useful, he had constituted the Rev. Mr. Whitaker to be his attorney, with power to solicit contributions, in England, for the further extension and carrying on of his undertaking; and that he had requested the Earl of Dartmouth, Baron Smith, Mr. Thornton, and other gentlemen, to receive such sums as might be contributed, in England, towards supporting his school, and to be trustees thereof, for his charity; which these persons had agreed to do: That thereupon Dr. Wheelock had executed to them a deed of trust, in pursuance of such agreement between him and them, and, for divers good reasons, had referred it to these persons to determine the place in which the school should be finally established: And, to enable them to form a proper decision on this subject, had laid before them the several offers which had been made to him by the several governments in America, in order to induce him to settle and establish his school within the limits of such governments for their own emolument, and the increase of learning in their respective places, as well as for the furtherance of his general original design: And inasmuch as a number of the proprietors of lands in New Hampshire, animated by the example of the Governor himself and others, and in consideration that, without any impediment to its original design, the school might be enlarged and improved, to promote learning among the English, and to supply ministers to the people of that Province, had promised large tracts of land, provided the school should be established in that Province, the persons before mentioned, having weighed the reasons in favor of the several places proposed, had given the preference to this Province, and these offers: That Dr. Wheelock therefore represented the necessity of a legal incorporation, and proposed that certain gentlemen in America, whom he had already named and appointed in his will to be trustees of his charity after his decease, should compose the corporation. Upon this recital, and in consideration of the laudable original design of Dr. Wheelock, and willing that the best means of education be established in New Hampshire, for the benefit of the Province, the king granted the charter, by the advice of his Provincial Council.

The substance of the facts thus recited is, that Dr. Wheelock had founded a charity, on funds owned and procured by himself; that he was at that time the sole dispenser and sole administrator, as well as the legal owner, of these funds; that he had made his will, devising this property in trust, to continue the existence and uses of the school, and appointed trustees; that, in this state of things, he had been invited to fix his school permanently in New Hampshire, and to extend the design of it to the education of the youth of that Province; that before he removed his school, or accepted this invitation, which his friends in England had advised him to accept, he applied for a charter, to be granted, not to whomsoever the king or government of the Province should please, but to such persons as he named and appointed, namely, the persons whom he had already appointed to be the future trustees of his charity by his will.

The charter, or letters patent, then proceed to create such a corporation, and to appoint twelve persons to constitute it, by the name of the "Trustees of Dartmouth College"; to have perpetual existence as such corporation, and with power to hold and dispose of lands and goods, for the use of the college, with all the ordinary powers of corporations. They are in their discretion to apply the funds and property of the college to the support of the president, tutors, ministers, and other officers of the college, and such missionaries and schoolmasters as they may see fit to employ among the Indians. There are to be twelve trustees for ever, and no more; and they are to have the right of filling vacancies occurring in their own body. The Rev. Mr. Wheelock is declared to be the founder of the college, and is, by the charter, appointed first president, with power to appoint a successor by his last will. All proper powers of government, superintendence, and visitation are vested in the trustees. They are to appoint and remove all officers at their discretion; to fix their salaries, and assign their duties; and to make all ordinances, orders, and laws for the government of the students. To the end that the persons who had acted as depositaries of the contributions in England, and who had also been contributors themselves, might be satisfied of the good use of their contributions, the president was annually, or when required, to transmit to them an account of the progress of the institution and the disbursements of its funds, so long as they should continue to act in that trust. These letters patent are to be good and effectual, in law, against the king, his heirs and successors for ever, without further grant or confirmation; and the trustees are to hold all and singular these privileges, advantages, liberties, and immunities to them and to their successors for ever.

No funds are given to the college by this charter. A corporate existence and capacity are given to the trustees, with the privileges and immunities which have been mentioned, to enable the founder and his associates the better to manage the funds which they themselves had contributed, and such others as they might afterwards obtain.

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.[1] 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. In a celebrated instance, those who asserted this power in Parliament vindicated its exercise only in a case in which it could be shown, 1st. That the charter in question was a charter of political power; 2d. That there was a great and overruling state necessity, justifying the violation of the charter; 3d. That the charter had been abused and justly forfeited.[2] The bill affecting this charter did not pass. Its history is well known. The act which afterwards did pass, passed with the assent of the corporation. Even in the worst times, this power of Parliament to repeal and rescind charters has not often been exercised. The illegal proceedings in the reign of Charles the Second were under color of law. Judgments of forfeiture were obtained in the courts. Such was the case of the quo warranto against the city of London, and the proceedings by which the charter of Massachusetts was vacated.

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.[3] 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. "Whatever might have been the notion in former times," says Lord Mansfield, "it is most certain now that the corporations of the universities are lay corporations; and that the crown cannot take away from them any rights that have been formerly subsisting in them under old charters or prescriptive usage."[4] After forfeiture duly found, the king may re-grant the franchises; but a grant of franchises already granted, and of which no forfeiture has been found, is void.

Corporate franchises can only be forfeited by trial and judgment.[5] In case of a new charter or grant to an existing corporation, it may accept or reject it as it pleases.[6] It may accept such part of the grant as it chooses, and reject the rest.[7] In the very nature of things, a charter cannot be forced upon any body. No one can be compelled to accept a grant; and without acceptance the grant is necessarily void.[8] It cannot be pretended that the legislature, as successor to the king in this part of his prerogative, has any power to revoke, vacate, or alter this charter. If, therefore, the legislature has not this power by any specific grant contained in the Constitution; nor as included in its ordinary legislative powers; nor by reason of its succession to the prerogatives of the crown in this particular, on what ground would the authority to pass these acts rest, even if there were no prohibitory clauses in the Constitution and the Bill of Rights?

But 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.[9] 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."[10] 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. A devise to a college, for their benefit, is a laudable charity, and deserves encouragement."[11]

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."[12] 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.[13] 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.[14] 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.[15] 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 imposes 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.[16]

The leading case on this subject is Phillips v. Bury.[17] 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, copied from his own manuscript, is found in 2 Term Reports. 346. The following is an extract:—

"That we may the better apprehend the nature of a visitor, we are to consider that there are in law two sorts of corporations aggregate; such as are for public government, and such as are for private charity. Those that are for the public government of a town, city, mystery, or the like, being for public advantage, are to be governed according to the laws of the land. If they make any particular private laws and constitutions, the validity and justice of them is examinable in the king's courts. Of these there are no particular private founders, and consequently no particular visitor; there are no patrons of these; therefore, if no provision be in the charter how the succession shall continue, the law supplieth the defect of that constitution, and saith it shall be by election; as mayor, aldermen, common council, and the like. But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and therefore, if there be no visitor appointed by the founder, the law appoints the founder and his heirs to be visitors, who are to act and proceed according to the particular laws and constitutions assigned them by the founder. It is now admitted on all hands that the founder is patron, and, as founder, is visitor, if no particular visitor be assigned; so that patronage and visitation are necessary consequents one upon another. For this visitatorial power was not introduced by any canons or constitutions ecclesiastical (as was said by a learned gentleman whom I have in my eye, in his argument of this case); it is an appointment of law. It ariseth from the property which the founder had in the lands assigned to support the charity; and as he is the author of the charity, the law gives him and his heirs a visitatorial power, that is, an authority to inspect the actions and regulate the behavior of the members that partake of the charity. For it is fit the members that are endowed, and that have the charity bestowed upon them, should not be left to themselves, but pursue the intent and design of him that bestowed it upon them. Now, indeed, where the poor, or those that receive the charity, are not incorporated, but there are certain trustees who dispose of the charity, there is no visitor, because the interest of the revenue is not vested in the poor that have the benefit of the charity, but they are subject to the orders and directions of the trustees. But where they who are to enjoy the benefit of the charity are incorporated, there to prevent all perverting of the charity, or to compose differences that may happen among them, there is by law a visitatorial power; and it being a creature of the founder's own, it is reason that he and his heirs should have that power, unless by the founder it is vested in some other. Now there is no manner of difference between a college and a hospital, except only in degree. A hospital is for those that are poor, and mean, and low, and sickly; a college is for another sort of indigent persons; but it hath another intent, to study in and breed up persons in the world that have no otherwise to live; but still it is as much within the reasons as hospitals. And if in a hospital the master and poor are incorporated, it is a college having a common seal to act by, although it hath not the name of a college (which always supposeth a corporation), because it is of an inferior degree; and in the one case and in the other there must be a visitor, either the founder and his heirs or one appointed by him; and both are eleemosynary."

Lord Holt concludes his whole argument by again repeating, 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.[18]

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 this absolute and conclusive power of visitors is no more than the law hath appointed in other cases, upon commissions of charitable uses: that the common law, and not any ecclesiastical canons, do place the power of visitation in the founder and his heirs, unless he settle it upon others: that although corporations for public government be subject to the courts of Westminster Hall, which have no particular or special visitors, yet corporations for charity, founded and endowed by private persons, are subject to the rule and government of those that erect them; but where the persons to whom the charity is given are not incorporated, there is no such visitatorial power, because the interest of the revenue is not invested in them; but where they are, the right of visitation ariseth from the foundation, and the founder may convey it to whom and in what manner he pleases; and the visitor acts as founder, and by the same authority which he had, and consequently is no more accountable than he had been: that the king by his charter can make a society to be incorporated so as to have the rights belonging to persons, as to legal capacities: 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."[19]

These opinions received the sanction of the House of Lords, and they seem to be settled and undoubted law. Where there is a charter, vesting proper powers in trustees, or governors, they are visitors; and there is no control in any body else; except only that the courts of equity or of law will interfere so far as to preserve the revenues and prevent the perversion of the funds, and to keep the visitors within their prescribed bounds. "If there be a charter with proper powers, the charity must be regulated in the manner prescribed by the charter. There is no ground for the controlling interposition of the courts of chancery. The interposition of the courts, therefore, in those instances in which the charities were founded on charters or by act of Parliament, and a visitor or governor and trustees appointed, must be referred to the general jurisdiction of the courts in all cases in which a trust conferred appears to have been abused, and not to an original right to direct the management of the charity, or the conduct of the governors or trustees."[20] "The original of all visitatorial power is the property of the donor, and the power every one has to dispose, direct, and regulate his own property; like the case of patronage; cujus est dare, &c. Therefore, if either the crown or the subject creates an eleemosynary foundation, and vests the charity in the persons who are to receive the benefit of it, since a contest might arise about the government of it, the law allows the founder or his heirs, or the person specially appointed by him to be visitor, to determine concerning his own creature. If the charity is not vested in the persons who are to partake, but in trustees for their benefit, no visitor can arise by implication, but the trustees have that power."[21]