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THE LEGAL PLEA

THE DARTMOUTH COLLEGE CASE

BY DANIEL WEBSTER

The case before the court is not of ordinary importance, nor of everyday occurrence. It affects not this college only, but every college, and all the literary institutions of the country. They have flourished hitherto, and have become in a high degree respectable and useful to the community. They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theater for the contentions of politics. Party and faction will be cherished in the places consecrated to piety and learning.

When the court in North Carolina declared the law of the State, which repealed a grant to its university, unconstitutional and void, the legislature had the candor and the wisdom to repeal the law. This example, so honorable to the State which exhibited it, is most fit to be followed on this occasion. And there is good reason to hope that a State which has hitherto been so much distinguished for temperate counsels, cautious legislation, and regard to law, will not fail

to adopt a course which will accord with her highest and best interests, and in no small degree elevate her reputation.

It was for many and obvious reasons most anxiously desired that the question of the power of the legislature over this charter should have been finally decided in the State court. An earnest hope was entertained that the judges of the court might have reviewed the case in a light favorable to the rights of the trustees. That hope has failed. It is here that those rights are now to be maintained, or they are prostrated forever.

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This, sir, is my case. It is the case, not merely of that humble institution, it is the case of every college in the land. It is more. It is the case of every eleemosynary institution throughout our country of all those great charities formed by the piety of our ancestors, to alleviate human misery, and scatter blessings along the pathway of life. It is more! It is, in some sense, the case of every man among us who has property, of which he may be stripped, for the question is simply this: Shall our State legislatures be allowed to take that which is not their own, to turn it from its original use, and to apply it to such ends or purposes as they in their discretion shall see fit?

Sir, you may destroy this little institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But, if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science, which, for more than a century, have thrown their radiance over our land!

It is, sir, as I have said, a small college, and yet there are those who love it.

Sir, I know not how others may feel, but for myself, when I see my Alma Mater surrounded, like Cæsar, in the senate house, by those who are reiterating stab after stab, I would not, for this right hand, have her turn to me, and say, et tu quoque, mi fili! And thou too, my son!

IN DEFENSE OF THE KENNISTONS

BY DANIEL WEBSTER

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Gentlemen of the Jury, It is true that the offense charged in the indictment in this case is not capital; but perhaps this can hardly be considered as favorable to the defendants. To those who are guilty, and without hope of escape, no doubt the lightness of the penalty of transgression gives consolation. But if the defendants are innocent, it is more natural for them to be thinking upon what they have lost by that alteration of the law which has left highway robbery no longer capital, than what the guilty might gain by it. They have lost those great privileges in their trial, which the law allows, in capital cases, for the protection of innocence against unfounded accusation. They have lost the right of being previously furnished with a copy of the indictment, and a list of the government witnesses. They have lost the right of peremptory challenge; and, notwithstanding the prejudices which they know have been excited against them, they must show legal cause of challenge, in each individual case, or else take the jury as they find it. They have lost the benefit of assignment of counsel by the court. They have lost the benefit of the Commonwealth's process to bring in

witnesses in their behalf. When to these circumstances it is added that they are strangers, almost wholly without friends, and without the means for preparing their defense, it is evident they must take their trial under great disadvantages.

But without dwelling on these considerations, I proceed, Gentlemen of the Jury, to ask your attention to those circumstances which cannot but cast doubts on the story of the prosecutor.

The jury will naturally look to the appearances exhibited on the field after the robbery. The portmanteau was there. The witnesses say that the straps which fastened it to the saddle had been neither cut nor broken. They were carefully unbuckled. This was very considerate for robbers. It had been opened, and its contents were scattered about the field. The pocket book, too, had been opened, and many papers it contained found on the ground. Nothing valuable was lost but money. The robbers did not think it well to go off at once with the portmanteau and the pocket book. The place was so secure, so remote, so unfrequented; they were so far from the highway, at least one full rod; there were so few persons passing, probably not more than four or five then in the road, within hearing of the pistols and the cries of Goodridge; there being, too, not above five or six dwellinghouses, full of people, within the hearing of the report of a pistol; these circumstances were all so favorable to their safety, that the robbers sat down to look over the prosecutor's papers, carefully examined the contents of his pocket book and portmanteau, and took only the things which they needed! There was money belonging to other

persons. The robbers did not take it.

They found out

It may be said to

it was not the prosecutor's, and left it. be favorable to the prosecutor's story, that the money which did not belong to him, and the plunder of which would seem to be the most probable inducement he could have to feign a robbery, was not taken. But the jury will consider whether this circumstance does not bear quite as strongly the other way, and whether they can believe that robbers could have left this money, either from accident or design.

II

The witnesses on the part of the prosecution have testified that the defendants, when arrested, manifested great agitation and alarm; paleness overspread their faces, and drops of sweat stood on their temples. This satisfied the witnesses of the defendants' guilt, and they now state the circumstances as being indubitable proof. This argument manifests, in those who use it, an equal want of sense and sensibility. It is precisely fitted to the feeling and the intellect of a bum-bailiff. In a court of justice it deserves nothing but contempt. Is there nothing that can agitate the frame or excite the blood but the consciousness of guilt? If the defendants were innocent, would they not feel indignation at this unjust accusation? If they saw an attempt to produce false evidence against them, would they not be angry? And, seeing the production of such evidence, might they not feel fear and alarm? And have indignation, and anger, and terror no power to affect the human countenance or the human frame?

Miserable, miserable, indeed, is the reasoning which would infer any man's guilt from his agitation when he

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